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2000 11-13 CCP Regular Session
AGENDA CITY COUNCIL STUDY SESSION November 13, 2000 6:00 P.M. CONFERENCE ROOM B 1. City Council discussion of agenda items and questions 2. Selection of top 5 Legislative Priorities for League of Minnesota Cities 3. Miscellaneous 4. Adjourn PLEASE PUT A CHECK MARK BY YOUR TOP FIVE (5) MAIN PRIORITIES (SUE FULL TEXT OF POLICIES IN THE PROPOSED 2001 CITY POLICIES PACK) City Name: Improving Fiscal Futures FF -l. State -Local Fiscal Relations _SD -10. City Costs for Enforcing State and Local Laws _FF -2- State Shared Revenues _SD -11. Design -Build _FF -3. Taxation of Municipal Bond Interest _SD -12. Providing Information to Citizens FF -4. City Fiscal Year _SD -13. Creating a Minnesota GIS Program FF -5. Sales Tax on Local Government Purchases _SD -14. State Regulation of Massage Therapists _FF -6- Payments for Services to Tax- Exempt Property _SD- 15. Private Property Rights and Takings FF -7. Truth -in- Taxation _SD -16. Construction Codes --FT-8. State Administrative Deductions from State Aid _.SD -17. Fees for Service FF -9. Reporting. Requirements _SD -18. State Appropriation for Government Training FF -10. Federal Budget Cutbacks Service (GTS) FF -11. Price of Government _SD -19. Public Safety Spectrum Needs FF -12. Capital Improvement Fees _SD -20. Joint & Several Liability Reform _ T -13. Deferred Assessments for Roads _SD -21. Competitive Bid Threshold _FF -14. Taxation of Electronic Commerce _SD -22. Membership in Watershed Management _FF -15. Limited Market Value Organizations _FF -16. State Charges for Administrative Services _SD-23. Legalization of Fireworks _SD- 24.911 Funding. ilmpraving Local Economies _SD -25. On -Sale Liquor or Wine Licenses to Performin,. _LE - 1. Tax Increment Financing Theaters and Cultural Centers _LE -2. TIF Reform _SD -26. City Use of Credit Cards _LE -3. Impact of Property Tax Reform on Existing Districts _SD -27. Youth Access to Alcohol and Tobacco LE-4. Business Subsidies _SD -28. Library Funding LE -5. Economic Development Programs _LE -6. Redevelopment Programs Human Resources and Data Practices LE -7. Property Tax Abatement Authority Human Resources LE -8. Brownfields _HR -1. Veterans' Preference LE -9.OSA Response Timelines ER -2. Discipline and Discharge LE- 10.OSA Time Limitations _HR -3. Compensation Limits LE -11. Growth Management and Annexation _HR-4. Pay Equity LE-12 Electric Service Extension --- HR-5. PELRA LE -13. State and/or County Licensed Residential Facilities -HR-6. Re- employment Benefits LE -14. Housing and Economic Vitality _HR -7. Essential Employees _LE -15. Preservation of Federally - Assisted Low- Income _HR-8. Pensions Housing _HR -9. PERA Funding Deficiency LE-16. Adequate Funding for Transportation _HR-10. Age Certificates / I -9 Forms ---LE -17. State Aid for Urban Road Systems HR -11. Employer Reference Immunity LE -18. Turnbacks of County and State Roads IiR -12. State Paid Police and Fire Medical Insurance _LE -19. Road Funding for Cities Under 5,000 _HR -13. Breathalyzers _LE -20. Railroad - Related Projects HR -14. Preservation of Local Decision- Making Authority -LE-21. Right of Way Management on Employment Related Issues _-._LE -22. Workforce Readiness _HR -15. Drug and Alcohol Rehabilitation LE-23. Platting Law Recodification HR -16. Health Care Insurance Programs _LE -24. Economic Development Authorities Data Practices --LE -25. Infrastructure Funding Options _DP -1. Public Access to Information --LE -26. Statutory Approval Timelines _DP -2. State Model Policies and Training LE -27. Telecommunications Restructuring _DP -3. Tennessen Warning _DP-4. Violations of Government Data Practices Act Improving Service Delivery DP -5. GDPA Compliance in Contracting _SD -1. Redesigning and Reinventing Government Federal Employment Law ` SD -2. Unfunded Mandates FED -1. FLSA/Overtime Compensation _SD -3. Civil Liability of Local Governments _FED -2. Peace Officer Bill of Rights _SD-4. Environmental Protection _FED -3. Portability of Deferred Compensation _SD -5. Election Isses FED -4. Medicare/Medicaid Premium Disbursements _SD -6. Local Election Authority ._SD -7. Election Judge Appointment _SD -8. Election Judge Compensation Electric Restructuring _SD -9. Counting Write -in Votes - -over -- Use this space to make • . p any comments or changes to the proposed policies. Use this space to suggest and briefly comment on additional policy issues you wish to be addressed. If necessary, use additional sheets. PUBLIC COPY CITY CO • UNCIL MEETING City of Brooklyn Center November 13, 2000 AGENDA 1. Informal Open Forum With City Council - 6:45 p.m. - provides an opportunity for the public to address the Council on items which are not on the agenda. Open Forum will be limited to 15 minutes, it is not televised, and it may not be used to make personal attacks, to air personality grievances, to make political endorsements, or for political campaign purposes. Council Members will not enter into a dialogue with citizens. uestions from the Council will be for clarification en Forum will not only. O Q Y p be used as a time for problem solving or reacting to the comments made but, rather, for hearing the citizen for informational purposes only. 2. Invocation - 7 p.m. 3. Call to Order Regular Business Meeting 4. Roll Call 5. Council Report 6. Approval of Agenda and Consent Agenda -The following items are considered to be routine by the City Council and will be enacted by one motion. There will be no separate discussion of these items unless a Councilmember so requests, in which event the item will be removed from the consent agenda and considered at the end of Council Consideration Items. a. Approval of Minutes Councilmembers not present at meetings will be recorded as abstaining from the vote on the minutes. 1. October 23, 2000 - Study Session 2. , October 23, 2000 - Regular Session 3. November 8, 2000 - Special Session b. Licenses C. Approve Application to Conduct Excluded Bingo at Orchard Lane Elementary School on November 16, 2000 d. Resolution Authorizing the Transfer of Surplus Funds from the General Fund to the Special Assessment Construction Fund and the Capital Improvements Fund • e. Resolution Awarding a Contract for Dental Insurance for City Employees • CITY COUNCIL AGENDA -2- November 13, 2000 f. Resolution Accepting Work Performed and Authorizing Final Payment, Improvement Project No. 1999 -10, Contract 1999 -J, Street Improvements, Camden Avenue and 66th Avenue Improvements and Signalization g. Site Performance Guarantee Release for Brookdale Corner Redevelopment h. Resolution Authorizing Purchase of Five 2001 Ford Crown Victoria Squad Cars Approved in the 2001 Capital Outlay Budget i. Resolution Correcting Year 2000 Labor Agreement Between City of Brooklyn Center and Teamsters Local No. 320 j. Resolution Approving Change Order No. 1, Accepting Work Performed and Authorizing Final Payment, Improvement Project Nos. 1999 -01, 02, and 03, Contract 1999 -A, Southeast Neighborhood Street, Storm Drainage, and Utility Improvements • k. Proclamation Recognizing Veterans Day, November 11, 2000 7. Appearances a. Report and Presentation to City Council on Highway 100 Project and Relocation of France Avenue 1. Presentation by SEH - Questions from City Council' 2. Presentation by Dr. Stevens - Questions from City Council 3. Presentation by Val Svensson, PE, from MrMOT - Questions from City Council 4. Public Comments Directed to City Council -a limit of five minutes per speaker to allow everyone an opportunity to comment, with one additional opportunity to make brief comments (2 minutes) after everyone has been afforded an opportunity to address the City Council 5. City Council Follow -up Questions to SEH, Dr. Stevens, and Ms. Svensson • . CITY COUNCIL AGENDA -3- November 13, 2000 6. City Council Direction to Staff on Any Additional Information the City Council Would like to Receive for the November 27, 2000, meeting. b. Mr. Sam Baxter -Go -cart Facility C. Mr. Wayne Paulson -City Ordinance Regarding Dogs 8. Public Hearings a. An Ordinance Amending Chapter 23 of the City Ordinances Relating to Amusement Devices - Requested Council Action: -Open the public hearing. -Take public input. -Close the public hearing. • - Motion to adopt ordinance. b. Consideration of Renewal Application for a Currency Exchange License From Community Money Centers, Inc. dba Money Centers, 6219 Brooklyn Boulevard - Resolution Authorizing Issuance of a Currency Exchange License to Community Money Centers, Inc. dba Money Centers, 6219 Brooklyn Boulevard, Brooklyn Center - Requested Council Action: -Open the public hearing. -Take public input. -Close the public hearing. - Motion to adopt resolution. 9. Council Consideration Items a. Resolution Expressing Appreciation for the Gift of the Brooklyn Center Lions Club in Support of Our Annual Holly Sunday Activities - Requested Council Action: - Motion to adopt resolution. b. Resolution Adopting Goals for 2001 - Requested Council Action: • - Motion to adopt resolution. • CITY COUNCIL AGENDA 4- November 13, 2000 C. Resolution Authorizing City Manager to Appoint Data Practices Compliance Official -Requested Council Action: - Motion to adopt resolution. d. An Ordinance Amending Chapter 12 of the City Ordinances Regarding Licensing of Rental Units -Requested Council Action: - Motion to approve first reading and set December 11, 2000, for second reading and public hearing. e. Resolution Providing for the Execution and Delivery of Two Supplemental Indentures of Trust Relating to Two Series of Refunding Revenue Bonds Pursuant to Minnesota Statutes, Sections 469.152 to 469.1651, on Behalf of Brookdale Two Limited Partnership -Requested Council Action: - Motion to adopt resolution. • f. Resolution Approving Contract Amendment with Local 49 of the International Union of Operating Engineers -Requested Council Action: - Motion to adopt resolution. g. Resolution Releasing Deficiency Agreement and Assessment Agreement on Lot 2, Block 1, Brooklyn Farm Subdivision -Requested Council Action: - Motion to adopt resolution. 10. Adjournment • City Council Agenda Item No. 6a MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA • STUDY SESSION OCTOBER 23, 2000 CONFERENCE ROOM B CALL TO ORDER STUDY SESSION The Brooklyn Center City Council met in study session and was called to order by Mayor Myrna Kragness at 6:00 p.m. ROLL CALL Mayor Myrna Kragness, Councilmembers Debra Hilstrom, Kay Lasman, Ed Nelson, and Robert Peppe. Also Present: City Manager Michael J. McCauley, Assistant City Manager Jane Chambers, and Deputy City Clerk Maria Rosenbaum. CITY COUNCIL DISCUSSION OF AGENDA ITEMS AND QUESTIONS Councilmember Nelson requested that the dates he provided during the Council Report at the p g p October 9, 2000, regular session, be corrected in the minutes. Council discussed City Council agenda items 6c, 6d, 6e, l Ob, l Oc, l Od, l Of, and EDA agenda item • 4b. From these discussions, it was the consensus of the Council to remove Council Consideration Item 6b, Resolution Adopting Goals for 2001. This resolution will be modified and brought back to the City Council for approval. DATE FOR CITY MANAGER'S ANNUAL REVIEW Council discussed dates for the City Manager's annual review. It was the consensus of the Council that tie City N1aLfag&s annual review will- be on December 4, 2000, at 6:00 p.m. - - MISCELLANEOUS Council discussed gardens in the boulevard, the ordinance pertaining to boulevards, and need for further discussion and review. ADJOURNMENT The study session continued into informal open forum at 6:40 p.m. . City Clerk Mayor 10/23/00 -1- DRAFT MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA REGULAR SESSION OCTOBER 23, 2000 CITY HALL 1. INFORMAL OPEN FORUM WITH CITY COUNCIL CALL TO ORDER INFORMAL OPEN FORUM The Brooklyn Center City Council met for study session at 6:00 p.m. and continued in informal open forum at 6:40 p.m. ROLL CALL Mayor Myrna Kragness, Councilmembers Debra Hilstrom, Kay Lasman, Ed Nelson, and Robert Peppe. Also present: City Manager Michael J. McCauley, Assistant City Manager Jane Chambers, Public Works Director Diane Spector, City Attorney Charlie LeFevere, and Deputy City Clerk Maria Rosenbaum. Bob Hill, 4701 Twin Lake Boulevard, addressed the Council regarding the France Avenue Study and shared his concern and suggestions regarding the project. Mr. Hill also questioned the removal of the sand beach at Twin Lake and questioned when a design will be shared on how the removal will be done. Public Works Director Diane Spector informed Mr. Hill that the neighborhood will be notified when a meeting date has been scheduled. ADJOURN INFORMAL OPEN FORUM A motion by Councilmember Hilstrom, seconded by Councilmember Nelson to adjourn informal open forum at 6:50 p.m. Motion passed unanimously. 2. INVOCATION Mayor Myrna Kragness offered the invocation. 3. CALL TO ORDER REGULAR BUSINESS MEETING The Brooklyn Center City Council met in regular session and was called to order by Mayor Myrna Kragness at 7:02 p.m. • 10/23/00 -1- DRAFT 4. ROLL CALL O Mayor Myrna Kragness, Councilmembers Debra Hilstrom, Kay Lasman, Ed Nelson, and Robert Peppe. Also present: City Manager Michael J. McCauley, Assistant City Manager Jane Chambers, Planning and Zoning Specialist Ron Warren, Public Works Director Diane Spector, City Attorney Charlie LeFevere, and Deputy City Clerk Maria Rosenbaum. 5. COUNCIL REPORT Councilmember Nelson reported that he attended the following: the France Avenue Study meeting on November 11, 2000, the Together for Kids, Making Peace Campaign sponsored by the Department of Public Safety on November 12, 2000, and the ribbon cutting for Highway 610, the Rotary recognition of the Lions, and the Park and Recreation meeting on November 17, 2000. Councilmember Nelson shared that the Northwest Suburbs Cable Commission public hearing for 4October 26, 2000; had been postponed and that the public hearing will be on November 9, 2000. Mayor Kragness reported that she also attended the 610 ribbon cutting and Rotary recognition of the Lions and that she was happy to represent Brooklyn Center. 6. - APPROVAL OF AGENDA AND CONSENT AGENDA Councilmember Lasman requested that Council Consideration Item l Ob, Resolution Adopting Goals , for 2001, be removed from the agenda. A motion by Councilmember Hilstrom, seconded by Councilmember Nelson to approve the agenda and consent agenda as amended. Motion passed unanimously. 6a. APPROVAL OF MINUTES A motion by Councilmember Hilstrom, seconded by Councilmember Nelson to approve the minutes from the October 9, 2000, study and regular sessions, and the October 16, 2000, general work session. Motion passed unanimously. 6b. LICENSES A motion by Councilmember Hilstrom, seconded by Councilmember Nelson to approve the following list of licenses. Motion passed unanimously. 10/23/00 -2- DRAFT • AMUSEMENT DEVICE - OPERATOR • Regal Cinemas Inc. 5420 Camden Avenue North MECHANICAL One Way Building Services, Inc. 5250 West 74th Street, Edina RENTAL Renewal: 3218 63rd Avenue North Eugene Hess Initial: 5445 Lyndale Avenue North Kent Bauer SIGN HANGER Twin Cities Sign Images, Inc. 17201 113th Avenue North, Osseo 6c. PROCLAMATION DECLARING _OCTOBER 22 -28, 2000, AS WORLD POPULATION AWARENESS WEEK -THIS ITEM WAS TABLED AT THE OCTOBER 9, 2000, MEETING. A motion by Councilmember Hilstrom, seconded by Councilmember Nelson to adopt Proclamation Declaring October 22 -28, 2000, as World Population Awareness Week. Motion passed unanimously. • 6d. RESOLUTION ACCEPTING WORK AND AUTHORIZING FINAL PAYMENT, IMPROVEMENT PROJECT NO. 1999 -20, CONTRACT 99 -L, AZELIA AVENUE IMPROVEMENTS RESOLUTION NO. 2000-171 Councilmember Hilstrom introduced the following resolution and moved its adoption: RESOLUTION ACCEPTING WORK AND AUTHORIZING FINAL PAYMENT, IMPROVEMENT PROJECT NO. 1999 -20, CONTRACT 99 -L, AZELIA AVENUE IMPROVEMENTS The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Nelson. Motion passed unanimously. 6e. RESOLUTION PROVIDING FOR THE COMPETITIVE NEGOTIATED SALE OF $735,000 GENERAL OBLIGATION IMPROVEMENT BONDS, SERIES 2000A • 10/23/00 -3- DRAFT RESOLUTION NO. 2000-172 Councilmember Hilstrom introduced the following resolution and moved its adoption: RESOLUTION PROVIDING FOR THE COMPETITIVE NEGOTIATED SALE OF $735,000 GENERAL OBLIGATION IMPROVEMENT BONDS, SERIES 2000A The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Nelson. Motion passed unanimously. i 7. RANDOM ACTS OF KINDNESS Mayor Kragness and Council Members distributed certificates to persons who were present and nominated for a random act of kindness. The following list is of persons who were nominated for a random act of kindness: Rita Ascher Jeff Basche Stefani Egnell Stephanie Troup Sarah Littlefield Brittany Rawson Jennifer Troup Jayme Budde Lisa Schumacher Lillian Rood Jessica Miller Dave Anderson • Gertie Anderson Lucy Harbinson Vicki Mattiuz Karen Tirrell Nancy Madden Peg Snesrud Carolea Nord Gail Lundquist Alice Purdham Juanita Berthelson Those persons who were nominated and not present will receive their certificates by mail. 8. PUBLIC HEARING 8a. AN ORDINANCE AMENDING CHAPTER 35 OF THE CITY ORDINANCES REGARDING BUILDING SETBACKS ALONG MAJOR THOROUGHFARES City Manager Michael McCauley discussed this ordinance amendment would modify building setbacks for commercial buildings located along maj or thoroughfares in the City consistent with the studies for Brooklyn Boulevard and requested the Council open the public hearing for public input. 10/23/00 -4- DRAFT • • A motion by Councilmember Lasman, seconded by Councilmember Hilstrom to open the Public Hearing. Motion passed unanimously. No one wished to address the Council. A motion by Councilmember Lasman, seconded by Councilmember Peppe to close the Public Hearing. Motion passed unanimously. ORDINANCE NO. 2000-11 Councilmember Nelson introduced the following ordinance and moved its adoption: AN ORDINANCE AMENDING CHAPTER 35 OF THE CITY ORDINANCES REGARDING BUILDING SETBACKS ALONG MAJOR THOROUGHFARES The motion for the adoption of the. foregoing ordinance was duly seconded by Councilmember Lasman. Motion passed unanimously. 9. PLANNING COMMISSION ITEM 9a. PLANNING COMMISSION APPLICATION NO. 2000-022 SUBMITTED BY MID CONTINENT MANAGEMENT CORPORATION ON BEHALF OF THE OWNER, COMMERS- CLOVER II, LLP. REQUEST FOR SITE AND BUILDING PLAN APPROVAL TO CONSTRUCT AN 11 STALL GARAGE AT 6331, 6401, AND 6425 BEARD AVENUE NORTH. THE PLANNING COMMISSION RECOMMENDED APPROVAL OF THIS APPLICATION AT ITS OCTOBER 12, 2000, MEETING. Planning and Zoning Specialist Ron Warren discussed Planning Commission Application No. 2000- 022 submitted by Mid Continent Management Corporation on behalf of the owner, Commers- Clover II, LLP, to construct an 11 stall garage on the property addressed 6331, 6401, and 6425 Beard Avenue North. The property is zoned R -5 and is located on the west side of Beard Avenue, south of 65th Avenue North, and is surrounded by 65th Avenue on the north with single - family homes on the opposite side of the street; the Rainbow development complex which is zoned C -2 on the south; and other R -5 zoned property containing the Garden City Court Apartments on the west. The Planning Commission recommended approval of this application subject to the following conditions: 1. The building plans are subject to review and approval by the Building Official with respect to applicable codes prior to the issuance of permits. • 10/23/00 -5- DRAFT 2. Grading and drainage plans are subject to review and approval by the City Engineer • prior to the issuance of permits. 3. The plans shall be modified prior to the issuance of permits to provide opaque screening of the trash container area including opaque screening on any gate serving this area. The use of plastic slats woven between chain link is not acceptable as a means of meeting this opaque screening requirement. A motion by Councilmember Lasman, seconded by Councilmember Peppe to approve Planning Commission Application No. 2000 -022 subject to the above listed conditions. Motion passed Pp J p unanimously. 10. COUNCIL CONSIDERATION ITEMS 10a. RESOLUTIONS RECOGNIZING AND EXPRESSING APPRECIATION 1. RESOLUTION EXPRESSING APPRECIATION FOR THE GIFT OF THE BROOKLYN CENTER LIONS CLUB IN SUPPORT OF OUR ANNUAL HALLOWEEN PARTY RESOLUTION NO. 2000 -173 Councilmember Hilstrom introduced the following resolution and moved its adoption: RESOLUTION EXPRESSING APPRECIATION FOR THE GIFT OF THE BROOKLYN CENTER LIONS CLUB IN SUPPORT OF OUR ANNUAL HALLOWEEN PARTY The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Lasman. Motion passed unanimously. 2. RESOLUTION EXPRESSING RECOGNITION AND APPRECIATION FOR THE COMMUNITY SERVICE OF LEONARD E. LINDQUIST RESOLUTION NO. 2000-174 Councilmember Nelson introduced the following resolution and moved its adoption: RESOLUTION EXPRESSING RECOGNITION AND APPRECIATION FOR THE COMMUNITY SERVICE OF LEONARD E. LINDQUIST 10/23/00 -6- DRAFT • The motion for the adoption of the foregoing resolution was duly seconded by Councilmember S Hilstrom. Motion passed unanimously. 10b. RESOLUTION ADOPTING GOALS FOR 2001 This item was removed from the agenda. loc. AN ORDINANCE AMENDING CHAPTER 12 OF THE CITY ORDINANCES REGARDING COMPLIANCE ORDER Mr. McCauley discussed this ordinance amendment would allow compliance orders to be sent by first class mail rather than registered mail and is on the agenda for first reading approval and to set second reading and public hearing for November 27, 2000. A motion by Councilmember Lasman, seconded by Councilmember Hilstrom to approve first - .reading: and set second reading and public hearing for November 27,2000- .Motion passed unanimously. 10d. RESOLUTION ELECTING TO CONTINUE PARTICIPATING IN THE LOCAL HOUSING INCENTIVES ACCOUNT PROGRAM UNDER THE METROPOLITAN LIVABLE COMMUNITIES ACT Mr. McCauley discussed this resolution would continue participation in the Local Housing Incentives Account Program under the Metropolitan Livable Communities Act for the calendar year 2001. The City has met its affordable housing goals. RESOLUTION NO. 2000-175 Councilmember Nelson introduced the following resolution and moved its adoption: RESOLUTION ELECTING TO CONTINUE PARTICIPATING IN THE LOCAL HOUSING INCENTIVES ACCOUNT PROGRAM UNDER THE METROPOLITAN LIVABLE COMMUNITIES ACT The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Hilstrom. Motion passed unanimously. • 10/23/00 -7- DRAFT 10e. RESOLUTION AUTHORIZING EXECUTION OF A TRAFFIC CONTROL • SIGNAL AGREEMENT WITH MN/DOT AND HENNEPIN COUNTY FOR THE REPLACEMENT OF TRAFFIC SIGNALS ON BROOKLYN BOULEVARD AT THE TRUNK HIGHWAY NO. 94 SOUTH AND NORTH RAMPS, IMPROVEMENT PROJECT NO. 1999 -04, BROOKLYN BOULEVARD RECONSTRUCTION, 64TH TO 71ST Mr. McCauley discussed this resolution would authorize a traffic control signal agreement for traffic lights located at Brooklyn Boulevard and the north and south ramps to Highway 94 in conjunction with the Brooklyn Boulevard project. The Council previously authorized a construction management agreement and construction cooperative agreement with Hennepin County and a separate agreement is needed for the traffic signals. RESOLUTION NO. 2000-176 Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION AUTHORIZING EXECUTION OF A TRAFFIC CONTROL SIGNAL AGREEMENT WITH MN/DOT AND HENNEPIN COUNTY FOR THE REPLACEMENT OF TRAFFIC SIGNALS ON BROOKLYN BOULEVARD AT THE TRUNK HIGHWAY NO. 94 SOUTH AND NORTH RAMPS, IMPROVEMENT PROJECT NO. 1999 -04, BROOKLYN BOULEVARD RECONSTRUCTION, 64TH TO 71 ST • The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Nelson. Motion passed unanimously. 10L RECOMMENDATION FROM PARK AND RECREATION COMMISSION REGARDING INTERSTATE 694 STORM WATER PONDING Mr. McCauley reviewed the Park and Recreation Commission recommendation related to the need - for, and potential locations of, storm water ponds needed as part of the pending widening of Interstate 694. The Park and Recreation Commission is recommending the City Council approve the option of locating a second pond on the North Memorial site rather than impacting City park land or removing houses. - Council discussed options and alternatives. Councilmember Nelson moved to select the North Memorial site as the preferred location for a storm water detention pond, seconded by Councilmember Peppe. Motion passed unanimously. 10/23/00 -8- DRAFT . 10g. STATUS OF 2000 COUNCIL GOALS • Mr. McCauley utlined the status of the 2000 Council goals. Y g 10h. AN ORDINANCE AMENDING THE WATER AND SANITARY SEWER HOOKUP CHARGE POLICY Mr. McCauley discussed this ordinance amendment would eliminate the current policy of referring back to previous special assessments for utility hookup and replace it with a policy which requires all properties making connection to the system to pay a flat rate based on property type and size. A motion by Councilmember Hilstrom, seconded by Councilmember Lasman to approve first reading of ordinance and set second reading and public hearing for November 27, 2000. Motion passed unanimously. 10i. CITY MANAGER'S ANNUAL REVIEW Mayor Kragness requested that the City Manager's annual review be set for December 4, 2000, at 6:00 P.M. A motion by Councilmember Hilstrom, seconded by Councilmember Nelson to set special meeting for City Manager's annual review for December 4, 2000, at 6:00 p.m. Motion passed unanimously. 11. ADJOURNMENT A motion by Councilmember Nelson, seconded by Councilmember Hilstrom to adjourn the City Council meeting at 7:42 p.m. Motion passed unanimously. City Clerk Mayor • 10/23/00 -9- DRAFT MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA - s SPECIAL SESSION F. NOVEMBER 8, 2000 C "" CITY HALL CALL TO ORDER The Brooklyn Center City Council met in special session as an election canvass board and was called to order by Mayor Myrna Kragness at 5 p.m. ROLL CALL Mayor Myrna Kragness, Councilmembers Kay Lasman, Ed Nelson, and Robert Peppe. Councilmember Debra Hilstrom was absent and excused. Also present were City Manager Michael J. McCauley and City Clerk Sharon Knutson. CANVASS OF ELECTION RETURNS The Brooklyn Center City Council proceeded to canvass the City election returns from the various City precincts, reporting ballots cast in the City of Brooklyn Center contests as follows: OFFICE OF COUNCIL MEMBER BALLOT COUNT Kay Lasman 7,118 Bob Peppe 6,135 Guy Madsen 3,912 Write -in Votes 154 RESOLUTION NO. 2000 -177 Upon completing the election canvass, Councilmember Lasman introduced the following resolution and moved its adoption: RESOLUTION REGARDING CANVASS OF NOVEMBER 7, 2000, GENERAL ELECTION The motion for the adoption of the foregoing resolution was duly seconded by Councilmember Nelson and the motion passed unanimously. ADJOURNMENT A motion by Councilmember Peppe and seconded by Councilmember Nelson to adjourn the meeting passed unanimously. The Brooklyn Center City Council meeting adjourned at 5:02 p.m. City Clerk Mayor 11/8/00 -1- City Council Agenda Item No. 6b City of Brooklyn Center • A Millennium Community MEMORANDUM TO: Michael J. McCauley, City Manager FROM: Maria Rosenbaum, Deputy City Clerk DATE: November 8, 2000 SUBJECT: Licenses for Council Approval The following companies /persons have applied for City licenses as noted. Each company /person has fulfilled the requirements of the City Ordinance governing respective licenses, submitted appropriate applications, and paid proper fees. Licenses to be approved by the City Council on November 13, 2000. CHRISTMAS TREE SALES LOT PQT Company 21050 Lake George Boulevard NW, Anoka MECHANICAL Brooklyn Aire Heating. and Cooling 8862 Zealand Avenue North, Brooklyn Park Master Gas Fitters Inc. 2240 Shawnee Drive, North St. Paul RENTAL Renewal: Twin Lakes Manor Twin Lakes Properties, LLP Initial: 5501 Brooklyn Boulevard Douglas Anderson (Mains' 1 Services) 6511 and 6521 Humboldt Avenue North Norlin Boyum (The Pines LLC) 5240 Drew Avenue North James and Melanie DeBellis SIGN HANGER Omega Construction, LLC 5421 Feld Road, Minnetonka TAXICAB Abdiaziz Abukar 11395 West Wind Drive #A, Eden Prairie Charles Ude 3615 McKinley Street NE, Minneapolis Chukwudi Okeke 5252 West 98th Street, Bloomington 6301 Shingle Creek Parkway Recreation and Community Center Phone & TDD Number Brooklyn Center, MN 55430 -2199 (763) 569 -3400 City Hall & TDD Number (763) 569 -3300 FAX (763) 569 -3434 FAX (763) 569 -3494 City Council Agenda Item No. 6c � c�H BROOKLYN CENTER POLICE DEPARTMENT POLICE MEMORANDUM TO: Sharon Knutson, City Clerk FROM: Joel Downer, Chief of Police DATE: November 8, 2000 SUBJECT: Application to Conduct Excluded Bingo Orchard Lane Elementary School On November 8, 2000, the Brooklyn Center Police Department received an Application for Authorization to Conduct Excluded Bingo from the Orchard Lane PTA. This application is for • an event to be held at the Orchard Lane Elementary School on November 16, 2000. This application has been approved and will be returned to the Orchard Lane PTA who will forward it to the State Gambling Control Board. If you or any member of the City Council objects to issuing this license, you must notify me within 30 days according to Minnesota State Statute. - Joe i' Chief of Police JD:kh City of Brooklyn Center A great place to start. A great place to stay. November 14, 2000 Department of Gaming Gambling Control Division Rosewood Plaza South, 3rd Floor 1711 West County Road B Roseville, MN 55113 To Whom It May Concern: The City of Brooklyn Center has received and reviewed the Application for Authorization to Conduct Excluded Bingo from the Orchard Lane PTA for an event to be held November 16, . 2000, at the Orchard Lane Elementary School located at 6201 Noble Ave N within the city of Brooklyn Center, Minnesota. The City of Brooklyn Center has waived the 30 day period to withdraw our approval for both these applications. Should you have any questions regarding the waiver, please feel free to contact me at 569 -3306. Sincerely, Sharon Knutson City Clerk SK:kh 6301 Shingle Creek Pkwy, Brooklyn Center, MN 55430 -2199 • City Hall & TDD Number (612) 569 -3300 Recreation and Community Center Phone & TDD Number (612) 569 -3400 • FAX (612) 569 -3494 An Affirmative Action /Equal Opportunities Employer ale x& -do54 . Minnesota Lawful Gambling Page 1 of 2 LG240B - Application to Conduct Excluded Bingo (No fee) 8/00 If your organization has beenlicensed or exempted in the current calendar year, you are not eligible to apply for excluded bingo. Organization Information Previous authorization number, if any Organization Name (as it appears on documentation filed with Minnesota Secretary of State or Internal Revenue Service) Ed L n . PTR Street —1401 K.ioh Au Mo. Z State Zip code County EML L O � � n� I 5 ��� I I4 EQV3. Type of nonproorganization (check one): Fraternal Veteran E] Religious Other nonprofit organization Type of proof of nonprofit - attach a copy (see. instru.-tions! Certificate of Good Standing - Minnesota Secretary of State's Office Internal Revenue Service Affiliate of parent nonprofit organization (charter) Excluded Bingo Activity information Has your organization held a bingo event in the current year? /� . No Yes-L If yes, list the dates that bingo was conducted 4 -1 i')' 1.,.' The bingo event will be one of four or fewer bingo events held this year. Date(s) of bingo event(s) -OR- The bingo event will be conducted (up to 12 consecutive days) in connection with a: County Fair -- - - - --- Date(s) of bingo event State Fair ---------- Date(s) of bingo event Civic Celebration - Date(s) of bingo eventt /j Name of person in charge of the bingo event ?Md a--fi� Old Daytime Phone Premises Where Excluded Bingo Will Be Conducted Name of premise vt r Street address City or towasbip County n 4e tz, Be sure to complete page 2 LG240B - Application t i o ,, Conduct E cluded Bing Page 2 of 2 o W la _y t� Lan0 �m a,00 Organization Name _ Chief Executive Ofcers Signature The information provided in this appli ' n is comple a urate to the of my knowledge. '`1�3' 7 - i --- Chief executive officer's signat Phone number Name (please print) Local Unit of Government Acknowledgment and Approval If the gambling premises is within city limits, the city must sign this application. On behalf of the city, I hereby approve this r �� cl� ^ application for excluded bingo activity at the P i t me of city premises located within the city's jurisdiction. Signature of city personnel receiving application Titls— � C1 't^ �_ Date , —/— , If the gambling premises is located in a township, both the county and township must sign this application. For the townshiD: On behalf of the township, I acknowledge that the organization is applying for excluded bingo activity within the township limits. Print name of township A township has no statutory authority to approve or Signature of township official acknowledging application deny an application (Minn. Stat. sec. 349.213, subd. . 2) • Title Date For the countv: On behalf of the county, I hereby approve this application for excluded bingo activity at the premises located within the county's Print name of county jurisdiction. (Signature of county personnel receiving application) Title Date ,_,_ This form will be made available in alternative format (i.e. large print, Braille) an authorization, all the information you have provided in the process of upon request. The information requested on this form (and any applying for an authorization remains private, with the exception of your attachments) will be used by the Gambling Control Board (Board) to name and your organization's name and address which will remain public. determine your qualifications to be involved in lawful gambling activities in Private data about you are available only to the following: Board members, Minnesota. You have the right to refuse to supply the information requested; however, if you refuse to supply this information, the Board may not be staff of the Board whose work assignment requires that they have access able to determine your qualifications and, as a consequence, may refuse to the information; the Minnesota Department of Public Safety; the to issue you an authorization. If you supply the information requested, the Minnesota Attorney General; the Minnesota Commissioners of Board will be able to process your application. Administration, Finance, and Revenue; the Minnesota Legislative Auditor, national and international gambling regulatory agencies; anyone pursuant Your name and your organization's name and address will be public to court order, other individuals and agencies that are specifically authorized information when received by the Board. All the other information that you by state or federal law to have access to the information; individuals and provide will be private data about you until the Board issues your agencies for which law or legal order authorizes a new use or sharing of authorization. When the Board issues your authorization, all of the information after this Notice was given; and anyone with your consent. information that you have provided to the Board in the process of applying for your authorization will become public. If the Board does not issue you Mail Application and Attachment(s) Send the completed application and a copy of your proof of nonprofit status at least 30 days prior to the activity date to: Gambling Control Board Suite 300 South • 1711 W. County Rd. B Roseville, MN 55113 If your application is denied by the local unit of government, do not send the application to the Gambling Control Board. LG240B - Application to Conduct Excluded Binqo - Instructions 8/00 • When May Excluded bingo (without a license) may be conducted: Excluded Bingo • by an organization that conducts four or fewer bingo occasions in a calendar year; or be Conducted? • in connection with a county fair, the state fair or a civic celebration if it is not conducted for more than 12 consecutive days in a calendar year. Completion of Complete the application, and attach proof of your organization's nonprofit status from either Application the IRS or the Minnesota Secretary of State. Minnesota Secretary of State IRS Income Tax Exemption Certificate of Good Standina - Nonorofit Under a national oroanization Articles of Incomoration OR If your organization falls under a national Attach a copy of your organization's organization, attach both of the following: Certificate of Good Standing (317A) 1. a copy of the IRS letter showing that showing incorporation as a nonprofit your national organization has been a organization. registered nonprofit 501(c) organiza- This certificate can be obtained from the tion and carries a group ruling, and Minnesota Secretary of State: 2, a copy of the charter, or letter from yon_.- national organization, recognizing Minnesota Secretary of State your organization as a subordinate. Business Services Division 180 State Office Building Not under a national organization St. Paul, MN 55155 If your organization does not fall under a national organization, attach a copy of Phone: 651 - 296 -2803 the IRS income tax exemption [501(c)] letter in the name of your organization, showing income tax exempt status. • To obtain a copy of your federal income tax exempt letter, send your federal ID number and the date your organization initially applied for tax exempt status to: IRS P.O. Box 2508 Room 4010 Cincinnati, OH 45201 Sales tax exempt status or federal ID employer numbers are not proof of income tax exempt status. Authorization to You will receive a document from the Gambling Control Board containing your authorization Conduct number for the gambling activity. Excluded Bingo NOTE: Gambling activity conducted without written authorization from the Gambling Control Board will be referred to the Department of Public Safety, Alcohol & Gambling Enforcement Division. Recordkeeping Your organization must keep its bingo records for 3 -1/2 years. Questions? Contact the Gambling Control Board at 651- 639 -4000. If you use a TTY, you can call the Board by using the Minnesota Relay Service at 1- 800 - 627 -3529 and ask to place a call to • 651 - 639 -4000. Check our Web site at www.gcb.state.mn.us. This form will be made available in alternative format (i.e. large print, Braille) upon request. City Council Agenda Item No. 6d MEMORANDUM TO: Michael J. McCauley, City Manager FROM: Charlie Hansen, Finance Director DATE: November 8, 2000 SUBJECT: Resolution Authorizing the Transfer of Surplus Funds from the General Fund to the Special Assessment Construction Fund and the Capital Improvements Fund The Financial Management Policies adopted by the City Council on June 8, 1992 establish a formula for determining a minimum level of fund balance to be maintained in the General Fund. Calculation of this formula on the fund balance in the General Fund as of December 31, 1999, reveals a surplus of $1,372,686 above the minimum requirements, which is available for other uses. The Financial Management Policies go on to state that no more that 50% of any year's surplus shall be committed to other uses in that year. This would allow the use (such as a transfer to another fund) of up to $686,343 at this time. The attached resolution transfers $680,000 of surplus funds from the General Fund to the Special Assessment Construction Fund and the Capital Improvements Fund. • Member introduced the followin g resolution and moved its adoption: RESOLUTION NO. RESOLUTION AUTHORIZING THE TRANSFER OF SURPLUS FUNDS FROM THE GENERAL FUND TO THE SPECIAL ASSESSMENT CONSTRUCTION FUND AND THE CAPITAL IMPROVEMENTS FUND WHEREAS, Section 7.11 of the City Charter provides the City Council with the authority to make permanent transfers between all funds which may be created, provided that such transfers are not inconsistent with the provisions of relevant covenants, the provisions of this charter, or State statute; and WHEREAS, The City Council adopted Financial Management Policies on June 8, 1992 which contain a formula to determine an adequate fund balance for the General Fund; and WHEREAS, there now exists $680,000 of surplus funds in the Genteial Fund which available for transfer according to the Financial Management Policies; and WHEREAS, there is a need in the Special Assessment Construction Fund for $265,000 to provide for a portion of the 2001 neighborhood street improvements which are to be funded on a city -wide basis instead of by special assessments; and WHEREAS, there is a need in the Capital Improvements Fund for $415,000 to provide an annual ongoing level of effort to fund park, building, and other capital needs. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota, that the General Fund shall transfer $265,000 to the Special Assessment Construction Fund and $415,000 to the Capital Improvements Fund. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member , and upon vote being taken thereon, the following voted in favor thereof. and the following voted against the same: • whereupon said resolution was declared duly passed and adopted. CITY OF BROOKLYN CENTER • ADEQUATE GENERAL FUND BALANCE POLICY FORMULA AS ESTABLISHED BY THE CITY COUNCIL ON DECEMBER 22, 1980 (LAST AMENDED BY RESOLUTION 99 -21 ON JANUARY 25, 1999) Latest Audited Total Fund Balance at December 31, 1999 $7,308,707 Unrealized Gains or Losses (subtract gains or add back losses) 106,221 Adjusted Total Fund Balance at December 31, 1998 $7,414,928 Minimum Required Fund Balance Elements: 1. Items Not Readily Convertible to Cash: a. Accounts Receivable 66,188 b. Advances to Other Funds 105 ' 074 • -------- - - - -- $171,262 2. Amount Appropriated to the General Fund Current Year Budget: 2000 3. Amounts to be Reserved for Working Capital and Variances from Revenue Estimates: (45% of Total General Fund Current Year Budget, less debt service) 45% of: $13,046,623 = $5,870,980 Minimum Required Fund Balance $6,042,242 Amount in Excess of Minimum Required Fund Balance $1,372,686 • Amount Available per Formula for Other Use in Current Year $686,343 fincomm \policies\finmgmtAdgfdbal 1999 11/2/00 12:52 PM I I City Council Agenda Item No. 6e i MEMORANDUM • TO: Michael J. McCauley, City Manager FROM: Charlie Hansen, Finance Director DATE: November 7, 2000 SUBJECT: Resolution Awarding A Contract for Dental Insurance For City Employees Attached is a resolution which will authorize awarding a contract to purchase employee dental insurance from Delta Dental, Inc. The City has received this insurance from HealthPartners, Inc. since July 1 .1996 -any' last renewed the contract on July 1, 2000. The premiums qualify to be paid from the contribution the City makes available to employees through the cafeteria benefits plan. Comparisons to other dental insurance providers have been made each time the contract was renewed. We currently are in the annual open enrollment period for the cafeteria benefits plan for the employees to select their benefits for the 2001 year. Shortly before the start of this open enrollment period, the City's insurance agent checked with Delta Dental again and received a proposal, which was worthy of presentation to the employees. Employees are seeing the proposal at meetings on November 6 and November 8. They are being asked to state their preference for either HealthPartners, Inc. or Delta Dental, Inc. no later than November 9. If the majority prefers to stay with HealthPartners, this resolution can be pulled from the agenda on Monday night. If the majority prefers to switch to Delta Dental, the City Council is requested to approve the attached resolution, which awards a contract to Delta Dental and cancels the contract with HealthPartners. • Member introduced the following resolution and moved S its adoption: - RESOLUTION NO. RESOLUTION AWARDING A CONTRACT FOR DENTAL INSURANCE FOR CITY EMPLOYEES WHEREAS, the City Council passed Resolution 2000 -92 awarding a contract for dental insurance for City employees for the period of July 1, 2000 through June 30, 2001 through a policy with HealthPartners, Inc.; and WHEREAS, Delta Dental has submitted an alternative proposal for dental insurance for City employees for the period of January 1, 2001 through December 31, 2001; and - WHEREAS, city employees reviewed these tw - .dental insurance plans at the open enrollment meetings and a majority of responding employees preferred the Delta Dental proposal. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center to accept the insurance contract with Delta Dental effective January 1, 2001 and cancel the contract with HealthPartners, Inc effective January 1, 2001. • Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. • • City Council Agenda Item No. 6f i MEMORANDUM DATE: November 7, 2000 TO: Michael J. McCauley, City Manager FROM: Todd Howard, City Engineer � t SUBJECT: Resolution Accepting Work Performed and Authorizing Final Payment, Improvement Project No. 1999 -10, Street Improvements, Camden Avenue and 66th Avenue Improvements and Signalization On June 28, 1999, the City Council awarded a contract to Midwest Asphalt Corporation for street improvements to Camden Avenue and 66th Averiue. In 3uly Ch rgy Order-No. 1 was approved to include a segment of 66th Avenue between Camden Avenue and Highway 252. All contract work by has been constructed in accrodance with the plans and specifications. The final contract amount of $529,056.02 is $22,636.98 under the approved contract amount of $551,693.00. The approximately 4% difference is due to a change in the alignment of an access drive and lower quantities on some items of work. A letter from the City's consultant, SEH, is attached and recommends authorizing final payment to Midwest Asphalt Corporation in accordance with a final contract amount of $529,056.02. • Member introduced the following resolution and moved its adoption: • RESOLUTION NO. RESOLUTION ACCEPTING WORK PERFORMED AND AUTHORIZING FINAL PAYMENT, IMPROVEMENT PROJECT NO. 1999 -10, STREET IMPROVEMENTS, CAMDEN AVENUE AND 66TH AVENUE IMPROVEMENTS AND SIGNALIZATION WHEREAS, pursuant to a written contract _ signed with the City of Brooklyn Center, Midwest Ashalt Corporation, has satisfactorily completed the following improvement in accordance with said contract: NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota that: 1. It is hereby directed that final payment be made on said contract, taking the Contractor's receipt in full. The total amount to be paid for said improvement under said contract shall be $529,056.02. 2. The work completed under said contract is accepted and approved according to the following schedule: Costs I Per CO # 1 I Final • Construction $551,693.00 $529,056.02 Sewer and Water work $52,105.00 $52,105.00 Signal Controller /Other $24,295.66 $24,295.66 Contingency /Change Orders $5,058.24 0 Subtotal Construction $633,151.90 $605,456.68 Easements $5,684.02 5,684.02 Engineering $90,000.00 $102,307.05 Legal /Admin/Bond cost $17,516.54 $21,645.96 Total Costs $746,352.46 $729,409.69 Revenues I Per Bid I Final I Street Assessments $542,859.64 $542,859.64 Local State Aid 151,387.82 134,445.05 Municipal State Aid 00 00 Sanitary Sewer Utility Fund 18,900.00 18,900.00 Water Utility Fund 33,205.00 33,205.00 Total Revenues $305,876.01 $729,409.69 RESOLUTION NO. • Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. • • 3535 Vadnais Center Drive, St. Paul, MN 55110 -5196 651.490.2000 651.490.2150 FAX architecture engineering environmental transportation �i November 8, 2000 RE: City of Brooklyn Center 66th and Camden Ave. Improvements SEH No. ABROCT9808.01 Todd Howard, P.E. City Engineer City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 Dear Mr. Howard: Please find enclosed the three (3) copies of application for final payment from Midwest Asphalt Corporation for the subject project. We have reviewed the application and recommend final • payment in the amount of $101,336.75, since the project has been constructed and completed in accordance with the plans and specifications. Please call me if you have any questions. The following ocuments have also been enclosed for our records: g y 1. Contractor's Affidavit of Release of Liens 2. Contractor's Affidavit of Payment of Debts and Claims 3. Consent of Surety to Final Payment 4. IC -134 forms for Contractor and Subcontractors Sincerely, Short Elliott Hendrickson Inc. Q AktI.- Robert L. Moberg, P.E. Project Manager evict, bm Short Elliott Hendrickson Inc. 0 Offices located throughout the Upper Midwest Equal Opportunity Employer We help you plan, design, and achieve. City Council Agenda Item No. 6g MEMORANDUM To: Michael J. McCauley, City Manager From: Ronald A. Warren, Planning and Zoning Speci ist Date: 11/8/2000 Re: Site Performance Guarantee Release The following site performance guarantee being held by the City to assure the completion of various site improvements should be recommended to the City Council for release: Brookdale Corner Redevelopment Southeast Corner of County Road 10 and Xerxes Avenue North Planning Commission Application Nos. 99002 and 99008 Amount of Guarantee - $75,000 (Letter of Credit) Obligor — Brookdale Corner, LLC All site improvements and conditions for which a site performance guarantee was f posted have been completed. In December 1999, the City Council authorized the reduction of the original $175,000 Letter of Credit to $75,000 based on the progress of the development to that date. At that time, a final wear course of asphalt was still needed, an as-built survey of the property was to be provided and landscaping needed to survive the winter. These matters have been addressed. It should be noted that it was mentioned to the developer in August of this year, that some of the trees on the site appeared to be stressed with leaves turning yellow or brown earlier than normal. The developer retained a professional plant pathologist and arborist to review the site. She noticed some trees did look stressed but it was not from lack of maintenance. The main cause of this problem was a spider and eriophyid mite problem. She noted that mite populations tend to build up during hot, dry, dusty conditions such as that being experienced at the time. She recommended no immediate action indicating that spraying next year might be appropriate if mites appeared. She also indicated that it was very unlikely that these trees would die as a result of this problem. Based on this information and the site performance, we recommend total release of the remaining $75,000 site guarantee. It should also be noted that we hold a separate performance guarantee for site improvements related to the Burger King development at Brookdale Corner, which is not affected by this action. i I • I City Council Agenda Item No. 6h • MEMORANDUM DATE: November 7, 2000 TO: Michael I McCauley, City Manager Q J FROM: David Peterson, Public Works Superintendent 4ttr J SUBJECT: Resolution Authorizing Purchase of Five 2001 Ford Crown Victoria Squad Cars Approved in the 2001 Capital Outlay Budget The regular replacement of police squads in 2001 is before you in the form of a resolution authorizing the purchase that would be placed through the Minnesota State contract. The squads would be ordered in November of 20CL to assure delivery in the early part of 2001. Thus, while the order is placed in 2000, delivery and payment of these vehicles will not be accepted until 2001. We have previously followed this procedure for this type of equipment so that we receive an allocation in a timely fashion in the following year. • • . its adoption: Member introduced the following resolution and moved RESOLUTION NO. RESOLUTION AUTHORIZING PURCHASE OF FIVE 2001 FORD CROWN VICTORIA SQUAD CARS APPROVED IN THE 2001 CAPITAL OUTLAY BUDGET WHEREAS five squad cars are scheduled for routine replacement in 2001 • and q P , WHEREAS, it is expected that $114,099 in accumulated depreciation will be available in the 2001 Central Garage capital outlay budget; and WHEREAS, a minimum of 120 day delivery makes immediate ordering preferable for 2001 delivery and payment; and WHEREAS, it is possible for the City of Brooklyn Center to participate in the 2001 Minnesota State Cooperative Purchasing Venture; and WHEREAS, replacement vehicles are available on the State contract Bid for Superior Ford at a total cost of 114 099• • P $ and , NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota that the early order purchase of five Ford Crown Victoria squad cars under the Minnesota State Cooperative Purchasing Venture at a total cost of $114,099 is hereby approved. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: • whereupon said resolution was declared duly passed and adopted. Purchase Order This order number MUST O 11 5119 1 CITY OF BROOKLYN CENTER appear on your invoice. • 6301 Shingle Creek Parkway Brooklyn Center, Minnesota 55430 CHARGE TO TELEPHONE (763) 569 - 3300 PROGRAM NO. ACCOUNT NO. AMOUNT 790 ys —3 4 /rau,dlo Date QUANTITY UNIT DESCRIPTION PRICE PER TOTAL vivre A-- C7 jo 7 Ear reR / OR - V1 L7 R A A/ 7 I'✓)V T T E A ._L Alre,e /OA ,�ti rP,e io!Z _ 9'4� #-T- ft kz .9� SPAT 60 00 3v© o U Vl -*7- AlLT/ PLe, tlNl zs -&e 47d Ai i,ke 41 06 2-05 W S &;f //- FayT /ntoG5 zit�ST,9L.C,t�J/ -%7 A//C N1C S �9�eA Alp L> 6 /�T l �L�; �s 1��� Lire A /c' A/ � r j�tzr/' — ('ov'e ' esc y 7.5 < /£S5 �o� �9 5 c. U) v dCLMP .l.E'P Gc / /. F'o_, 6,ea4.W /� -7�.Cj Q© .-2- s 00 #?.13 �'k - 1),Pi VeP V r,, I"�'S l/ ,VL-N /L/G ��G S f� � 2y 1V >N.taor�S-- �2� �1a�_ 9'' S� C�►�c�r %9 oU 9000 / �o�r,��i l= am i.ss✓ S XANI)AL #2-9 '12 04 CYO 0 0 13(Z UCH &Six � C) a o� /a��o n ose of Order 7�f p /A,CeG/1✓z?�'T 19F S /=o ',� 040WA) t/Ie 000117b /9y XPlpo vez) iii °?O4 ,'9P/mL ©U/L q � �.� may/ - Off', ',2P,� Tf/,�'v / ST 7 as ordered on 20 Signed PURCHASING AGENT City Council Agenda Item No. 6i Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION CORRECTING YEAR 2000 LABOR AGREEMENT BETWEEN CITY OF BROOKLYN CENTER AND TEAMSTERS LOCAL NO. 320 WHEREAS, an interest arbitration award was made August 28, 2000, regarding Teamsters Local No. 320 and the City of Brooklyn Center, BMS Case No. 00 -PN -772 (Department Heads); and WHEREAS, a contract has been written in accordance with the arbitrator's award, including a three percent increase in wages for Year 2000, an agreement for union members to receive three hundred and ninety f rre doll5rs (1' 95_) per month as the City's contribution toward use in the City of Brooklyn Center Cafeteria Benefit Plan, and also including amended language related to eligibility for payment of accumulated sick pay upon resignation from the City; and WHEREAS, the City Council authorized the Mayor and City Manager to sign the labor agreement by Resolution 2000 -170 at its meeting of October 9, 2000, and retro- active payments were then prepared by City staff; and WHEREAS, during he preparation of retro- active payments it was discovered that g P P p Ym Appendix A, Department Heads Salary Schedule - 2000, in the agreement incorrectly stated the salary of one member of the labor union. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center that the corrected salary schedule Appendix A, initialed by the representative of Teamsters Union 320 Brenda Corrigan, replace the Appendix A in the document authorized to be signed by the Mayor and City Manager in Resolution 2000 -170. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: • whereupon said resolution was declared duly passed and adopted. October 27, 2000 MEMO TO: Michael J. McCauley, City Manager FRO `"Jane A. Chambers, Assistant City Manager SUBJECT Corrected error in Labor Agreement: City of Brooklyn center and Minnesota Teamsters Public and Law Enforcement Employees' Union, Local No. 320 Attached, please find a copy of the initialed corrected Salary Schedule for Year 2000. The Staff Services Supervisor's salary was corrected as per my previous memo to you dated October 19, 2000. Labor Relations staff re -typed the sheet and forwarded it to Brenda Corrigan for your initials. She has now sent the initialed dopy to me. If this change requires City Council approval, please advise and I will prepared the necessary resolution with the back -up documentation for the November 13 Council meeting. Meanwhile, please place the corrected copy with your copy of the labor agreement so that you have the corrected salary page. • I APPENDIX A DEPARTMENT HEADS , SALARY SCHEDULE - 2000 ` > YEARLY RATES i $69,956 $86,394 DIRECTOR OF PUBLIC SERVICES 046 $80,332 DIRECTOR OF FINANCEJCITY TREASURER $65, CHIEF OF POLICE $63,358 $78.247 I DIRECTOR OF COMMUNITY DEVELOPMENT $59.41 2 $73,373 ' COMMUNITY ACILVLnES,RECREATION & SERVICES OIRECTOR $58,689 $72,48fi FIRE CHIEF $55,224 $68,202 MONTHLY RATES STEP A STEP B STEP C STEP D STEP E STEP F STEP G� CITY ENGINEER $5,013 $5,263 $5,527 $5,665 $5,806 $5,951 $6,101 > CITY ASSESSOR $4,771 $5,009 $5,259 $5.391 $5,526 $5,fi64 $5,806 POLICE CAPTAIN $4,656 $4,888 $5,132 $5,260 $5,392 $5,527 $5,665 ' ASSISTANT DIRECTOR z - OF FINANCE $4,541 $4,769 $5,007 $5,132 $5,261 $5,392 $5,527 tit LIQUOR OPERATIONS MANAGER $4,323 $4,539 $4,766 $4,885 $5,008 $5,132 $5,261 EARLE BROWN HERITAGE CENTER MANAGER $4.014 $4,214 $4,425 $4 $4,648 $4,765 $4,884 AFF SERVICES ' SUPERVISOR $3,461 $3,634 $3,815 $3,91 t $4,009 $4,109 $4.21 U 14 L� " a October 19, 2000 MEMO TO: Mic ael I McCauley, City Manager FROM: ane A. Chambers, Assistant City Manager SUBJECT: Error in Labor Agreement: City of Brooklyn Center and Minnesota Teamsters Public and Law Enforcement Employees' Union, Local No. 320 During the process of making back -pay calculations for employees in the Teamsters (Department Head) Union, staff discovered that there was an error in the agreement pertaining to the pay schedule for the position of Staff Services Supervisor. _ The position had been reclassified on 12/21/98 from a pay grade of T12 to T20- The reclassification was included in the 1999 Pay Plan approved and adopted by the City Council, and the employee was paid at the new rate throughout 1999. However, the 1999 labor agreement did not show the corrected amount for the employee, and contained the previous T12 salary schedule. The salary schedule represented in the 1999 contract was then upgraded by 3% as per the arbitration award for the 2000 agreement, and the error was carried forward in the contract. Authorization for payment of the position has been obtained through the correct procedures of the Human Resources Action Form, and through adoption of the 1999 Pay Plan. It is upon these records that the position has been paid at the T20 rate throughout 1999, and now, as payment for 2000. The Contract should be changed to reflect the correct pay schedule for the position. I have asked Labor Relations Associates, who drafted the current agreement, to make the changes on page 14 of the agreement, forward them to the Union for signature, and return to me for further Council approval as necessary. cc: Charlie Hansen, Finance Director Union Steward l APPENDIX A 'DEPARTMENT HEADS SALARY SCHEDULE -2000 YEARLY RATES DIRECTOR OF PUBLIC SERVICES $69'956 $86,394 DIRECTOR OF FINANCE /CITY TREASURER $65,046 $ 3 CHIEF OF POLICE. $63,358 $78,247 DIRECTOR OF COMMUNITY DEVELOPMENT $59,412 $73.373 COMMUNITY ACTIVITIES, RECREATION & SERVICES DIRECTOR $58,689 $72,481 68 202 CHIEF . , FIRE C $55,224 $ . MONTHLY RATES STEP A STEP B STEP C STEP D STEP E STEP F STEP G CITY ENGINEER' $5,013 $5,263 $5,527 $5,665 $5,806 $5,951 $5,801 CITY ASSESSOR $4,771. $5,009 $5,259. $5,391 $5,526 $5, POLICE CAPTAIN $4,656 $4,888 . $5,132 $5,260 .$5,392 $5,527 $5,665 ASSISTANT DIRECTOR OF FINANCE $4,541. $4,769 ° $5,007 $5,132 $5,261 $5,392 $5,527 LIQUOR OPERATIONS MANAGER $4,323 $4,539 $4,766 $4,885 $5,008 $5,132 $5,261 I EARLE BROWN HERITAGE CENTER MANAGER $4,014 $4,214 $4,425 $4,535 $4,648 $4,765 $4,884 STAFF SERVICES ` $ $ .$3;292 $ $ SUPERVISOR ' 14• i City Council Agenda Item No. 6j i MEMORANDUM DATE: November 7, 2000 TO: Michael J. McCauley, City Manager FROM: Todd Howard, City Engineer `� SUBJECT: Resolution Approving Change Order No. 1, Accepting Work Performed and Authorizing Final Payment, Improvement Project Nos. 1999 -01, 02, and 03, Contract 1999 -A, Southeast Neighborhood Street, Storm Drainage and Utility Improvement On April 12, 1999, the City Council awarded a contract to Widmer, Inc. for Improvement Project Nos. 199 -01, 02, and 03, in the amount $2,173,909.55. All work by Widmer, Inc. has now been completed in accordance with the Contract Documents. Change Order No. 1, in the amount of $47,808.90 was necessary to complete additional water main work, lower sanitary sewer services due to grade changes and other miscelaneous utility work. Change Order No. 1 results in an approximate 2.1 percent of increases over the original contract. In addition, a higher than anticipated water table resulted in greater dewatering costs and a larger quantity of crushed rock for pipe bedding. The two items resulted a net contract increase $14,994.31 for a final contract amount of $2,236,712.76. It is recommended to approve the attached resolution approving Change Order No. 1 and authorizing final payment to Widmer, Inc. in accordance with a final contract amount of $2,236,712.76. i Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION APPROVING CHANGE ORDER NO. 1, ACCEPTING WORK PERFORMED AND AUTHORIZING FINAL PAYMENT, IMPROVEMENT PROJECT NOS. 1999 -01, 02, and 03, CONTRACT 1999A, SOUTHEAST NEIGHBORHOOD STREET, STORM DRAINAGE, AND UTILITY IMPROVEMENT WHEREAS, the City of Brooklyn Center wishes to complete additional improvements; and WHEREAS, pursuant to a written contract signed with the City of Brooklyn Center, Widmer Inc., has satisfactorily completed the following improvement in accordance with said contract: Improvement Project Nos. 1999 -01, 02, and 03, Contract 1999A NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota that: 1. Change Order No. 1 is hereby approved. 1. It is hereby directed that final payment be made on said contract, taking the Contractor's receipt in full. The total amount to be paid for said improvement under said contract shall be $2,236,712.76. 2. The work completed under said contract is accepted and approved according to the following schedule: I Costs , Per Low Bid I Final Construction $2,173,909.55 $2,188,903.86 Contingency /Change Orders $130,431.57 47,808.90 Subtotal Construction $2,304,341.12 $2,236,712.76 Streetlights $35,000.00 35,000.00 Reforestation $30,000.00 $11,159.79 Engineering $168,474.02 $191,183.92 Legal /Admin/Bond cost/other $18,201.97 $83,955.52 Total Costs $2,556,017.11 $2,558,011.99 I Revenues I Per Bid I Final . Street Assessments $807,564.80 $803,250.92 Storm Drainage Assessments 264,270.00 265,626.17 Local State Aid 54,422.52 0 Municipal State Aid 132,812.22 131,802.25 RESOLUTION NO. Water Utility 68,902.00 57,553.53 Storm Drainage Utility 127,697.93 76,023.35 General Fund 562,347.64 600,524.80 Sanitary Sewer Utility Fund 538,000.00 623,230.97 Total Revenues $2,556,017.11, $2,558,011.99 Date Mayor ATTEST: City Clerk • The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. i City Council Agenda Item No. 6k I • PROCLAMATION RECOGNIZING VETERANS DAY, NOVEMBER 11, 2000 WHEREAS, the 25th of June 2000 marked the 50th Anniversary of the beginning of The Korean War in which over five million uniformed Americans, men and women, served over the space of three years; and WHEREAS, The United States armed forces, despite the fact that this conflict was a United Nations sanctioned action, contributed the overwhelming and decisive land, sea, and air combat elements to The Korean War effort; and WHEREAS, American armed forces units were engaged in brutal, bitter, and oft -times frustrating combat conditions and prevailed; and WHEREAS, as a direct result of our dedicated American combat and support forces, Communist totalitarian aggression was held at bay, but at the sacrifice of 36,748 dead and 103,284 wounded. NOW, THEREFORE, I, AS MAYOR OF THE CITY OF BROOKLYN CENTER, State of • Minnesota, do hereby proclaim that on Veterans Day, November 11, 2000, all citizens of Brooklyn Center unite in recognizing the contribution of our Korean War Patriots, especially those who, in the tradition of our forebears, sacrificed so much of themselves — and, too many times, made the supreme sacrifice — to selflessly serve our nation and all the freedom - loving nations of the world in time of need. Date Mayor Attest: City Clerk • • City g Council Agenda Item No. 7a City of Brooklyn Center A great place to start. A great place to stay. To: Mayor Kragness and Council Members Hilstrom, Lasman, Nelson and Peppe From: Michael J. McCauley City Manager Date: November 9, 2000 Re: , Report on France Avenue re- routing for Highway 100 Pursuant to the City Council's direction, SEH has conducted meetings with residents in the area around the West side of France Avenue impacted by the reconstruction of Highway 100. SEH has also conducted an independent review of the proposed relocation route and a-, rnate concepts. SEH will make its report to the City Council at the November 13th City Council meeting. When the City Council started this review process, it indicated that it would receive the report and wait until the subsequent City Council meeting to take any action on the report. Thus, the matter is on the agenda for informational purposes and will be placed on the November 27th agenda for action. The status of the project is that the City Council has approved the preliminary layout, while reserving final judgment on the France Avenue railroad crossing design. On the 27th, direction will be needed as to the design for that connection. The Council will be asked to decide on approval of the cooperative agreement with MnDOT for the France Avenue project and the request for proposals to design the project. One of the issues raised in the course of the meetings with residents has been a clear understanding of the environmental issues associated with the potential location of a roadway and bike path across a de- listed Federal Superfund site. That is, is there a health risk posed by this site in its remediated state? Jeffrey Stevens, Ph.D. of STS Consultants, Ltd. will make a presentation after the SEH presentation to address the environmental issues. Val Svensson, PE, from MnDOT will make a short presentation on the status of the project, its time lines, and funding issues. As indicated in Ms. Spector's memorandum, notice of the report to the Council was sent to the 900 residents in the area delineated by the City Council for notices. The November 6th notice to residents indicates that the purpose of the meeting is to receive the report and take public comments. I would recommend the following format for the reception of information: 1. Presentation by SEH • - questions from City Council 6301 Shingle Creek Pkwy, Brooklyn Center, MN 55430 -2199 • City all & TDD Number (612) 569 -3300 y Recreation and Community Center Phone & TDD Number (612) 569 -3400 • FAX (612) 569 -3494 An Affirmative Action /Equal Opportunities Employer • 2. Presentation by Dr. Stevens - questions from City Council 3. Presentation by Val Svensson, PE, MnDOT - questions from City Council 4. Public Comments directed to City Council - a limit of 5 minutes per speaker to allow everyone an opportunity to comment, with one additional opportunity to make brief comments (2 minutes) after everyone has been afforded an opportunity to address the City Council 5. City Council follow -up questions to SEH, Dr. Stevens, Ms. Swenson 6. City Council direction to staff on any additional information the City Council - would like to receive for the November 27th meeting. • MEMORANDUM DATE: November 8, 2000 TO: Michael J. McCauley, City Manager _ FROM: Diane Spector, Director of Public Works SUBJECT: SEH Report Re: TH 100 Design Over the past several weeks, the City's consultant, SEH, Inc., has met twice with residents in the TH 100/France Avenue area, and has done additional research regarding potential other options for the relocation of France Avenue. SEH has also collected questions and concerns from residents, and presented responses to those questions at the second informational meeting. At the November 13, 2000 meeting SEH will present a report of its findings. This report will include a detailed listing of the pros and cons of the original France Avenue relocation design ( "Option 1 ") and an additional option identified at the meetings ( "Option 2 "). SEH will also have preliminary cost figures for these options. Representatives from Mn/DOT and environmental experts familiar with the Joslyn site will also be available at the November 13 meeting to answer any council questions. The purpose of this agenda item is for the Council to hear and receive SEH's report, and to obtain public comment. Over 900 notices were sent to property owners in that part of the City that is west of Brooklyn Boulevard and south of Bass Lake Road. We recommend that this meeting be dedicated to obtaining input and for the council to request SEH, Mn/DOT, or other representatives for more information, and that no decisions regarding pursuit of a specific option be made. • 7 City of Brooklyn Center November 6, 2000 A Millennium Community Dear Property Owner: Discussions have been continuing regarding the design of France Avenue between 50 Avenue and the new interchange with TH 100. The engineering firm of SEH, Inc. has been hired by the City to do further investigation of options for this roadway, and to hold public meetings to obtain neighborhood input. As you will recall, the substandard CP Rail bridge as will be reconstructed s a part of the TH 100 reconstruction project, and it will be raised between three and five feet. Some of you may have seen the incident a few weeks ago where a semi truck southbound on TH 100 struck the bridge, peeling off part of the top of the truck and sending part of its load of cookies onto the highway. To raise the bridge, the tracks on either side will have to be raised as well. France Avenue can no longer cross over the railroad tracks at its existing location, and a new location for France Avenue must be found. The purpose of Chis letter is to bring you up to date as - ='z the results of the investigation, and to invite you to attend the City Council meeting at 7pm on Monday, November 13, 2000, in the City Council Chambers at City Hall, 6301 Shingle Creek Parkway. At this meeting, SEH will present its report to the City Council, and the City Council will take public comment on the two specific options that have been identified for France Avenue. Please note that this report will NOT cover other issues that have been discussed, such as the location of noise walls or issues south of TH 100. The purpose of the meeting will be to discuss the pros and cons of the two France Avenue options. • Enclosed with this letter is a summary of the process to date and some of the general findings, and a map showing the two options for potential consideration: Option 1, which would relocate France, Avenue through the new Twin Lake industrial park with an at -grade railroad crossing, and Option 2, a recently identified option which would relocate France Avenue as a frontage road with a grade separated crossing. The engineering consultant is currently preparing a detailed listing of the pros and cons of each of these options, as well as more information regarding which additional properties must be acquired, the estimated impact on neighborhood traffic, and cost to the city. This information will be available at the November 13, 2000 City Council meeting. The City Council will take this information and public comments into account when a decision is made as to the next course of action. Thecouncil will NOT take any formal action on alternatives on November 13. The council may take formal action at its November 27 meeting. If you have any questions, please feel free to contact the Engineering Division at 763 -569 -3340. Sincerely, Diane Spector DIRECTOR OF PUBLIC WORKS Cc: Mayor Kragness and Council Members Michael J. McCauley, City Manager • 6301 Shingle Creek Parkway Recreation and Community Center Phone & TDD Number Brooklyn Center, MN 55430 -2199 (763) 569 -3400 City Hall & TDD Number (763) 569 -3300 FAX (763) 569 -3434 FAX (763) 569 -3494 BROOKLYN CENTER • HIGHWAY 100 RECONSTRUCTION FRANCE AVENUE CONNECTION ALTERNATIVES NOVEMBER 3, 2000 The City of Brooklyn Center received a number of comments from residents relative to specific design features of the Highway 100 Reconstruction. The City of Brooklyn Center and Mn/DOT, along with other area cities, have been cooperating in the design of Highway 100 in the area, which includes the replacement of at -grade intersections with interchanges and associated road relocations. The concept design for Highway 100 has been approved, but some of the design features are still being reviewed. The major design concern was the relocation of France Avenue west from the 50 Street intersection to connect at the Lake Breeze Avenue and Azalea Avenue intersections. To assist in the analysis of this concern, the City of Brooklyn Center hired SEH to review specific_ concerns and questions of residents, develop responses, and report back to the City. Two meetings have been held in the review process. Meeting No. 1, held on Tuesday, August 29, 2000, was primarily to listen to concerns and collect data from area residents. At that meeting, a number of comments were made and recorded. All comments were later combined and organized by SEH. Comment cards were provided and several were returned with additional comments. The final list had 77 questions and comments. The list was divided into several categories including traffic, road design, railroad questions, environment and development. A second meeting in the process was held on Wednesday, October 11, 2000. At that meeting, information collected in response to the comments and -questions was presented. Specific answers to questions, such as road elevations, clearances for railroad bridges, traffic volume projections and railroad operating information were provided. Specific information was presented relative to existing and projected traffic volumes, traffic from proposed development, traffic flow,, design details (primarily elevation and grades), railroad track reconstruction, train - operating plans, and land zoning. Groundwater contamination, plume movement and elev lion were discussed along with other environmental comments. Some of the alternative concepts which were suggested by residents at the first meeting were also discussed. Some had physical characteristics which made them difficult to implement. These included constructing Highway 100 over the railroad track, redesigning the interchange to provide a straight alignment of France Avenue, and alternative concepts for the interchange design. Enough information was collected to determine that these were not viable alternates. Of the alternates suggested for France Avenue, the concept of relocating France Avenue to the east to serve as a frontage road along Highway 100 was discussed in some detail. The advantages and disadvantages of both the alignment of France Avenue as a frontage road and the relocation of France Avenue to connect to Azalea Avenue and Lake Breeze Avenue were discussed. As the discussion continued, it became apparent that a systematic comparison of the advantages and disadvantages was needed. Highway 100 Reconstruction France Avenue Connection Alternatives November 3, 2000 Page 2 • Since the October 11 meeting, the concept design for relocation of France Avenue as a frontage road was prepared in more detail. Two alternatives to the concept have been made. One reconnects the road directly to France Avenue to provide continuity. , The second provides a direct connection to Drew Avenue with the use of 50' Street as a connection between the Drew Avenue and frontage road intersection and existing France Avenue north of 50 Street. SEH is currently preparing a comparison list of the advantages and disadvantages of the three alternative relocations for France Avenue. Some are very easy to compare such as an at -grade railroad crossing vs. a grade separated railroad crossing. Others are based on projected traffic flow which can be done accurately, but subject to debate. Still others rely upon development of a safe, acceptable design concept for comparison. They are also summarizing the responses to the many comments made at the August 29 meeting. This information will all be presented to the Brooklyn Center City Council on November 13, 2000 as part of the regular meeting. At the meeting, SEH will make a verbal presentation of the data and provide draft copies of a summarization of the final report. At that meeting, the City Council will determine if there should be further review of the alternative. LAKESIDE PARK V XL c� JLNU AVt. V1 A W r" Z Z 100 01ST - 1.4 J. a A • z OPTION 1 50T i � 11 J --L` - C 4JTH g OPTION2 3 AKEBREEZ A p d - Y 47TH I I ' AW 1 . IN 1 • City Council Agenda Item No. 7b t MEMORANDUM TO: Mayor and Council Members FROM: Michael J. McCauley, City Manager DATE: November 9, 2000 SUBJECT: Appearance pp of Sam Baxter Mr. Baxter has previously supplied information to the City Council regarding his proposed go cart and other amusement device facility. Attached is a memorandum from Mr. Warren outlining the uses permitted in the industrial zone, which uses do not include the use propose"! by Mr. Baxter. Mr. Warren's memo indicates that amusement activities of the nature proposed by Mr. Baxter are permitted as special uses in the C2 zone. In his conversations with city staff, Mr. Baxter wanted the opportunity to request a review of the city's zoning code. This matter is on the agenda for Mr. Baxter to make his presentation to the City Council so that the City Council can determine whether or not his request would warrant a request to the Planning Commission to review the city code. • With the recent adoption and approval of our comprehensive plan, our zoning ordinances are generally current. A review of the comprehensive planning process determined that industrial usage was appropriate in the area investigated by Mr. Baxter. There would not seem to be any omission in our planning process that would suggest further study was necessary, unless the Council feels that additional review by the Planning Commission and city staff would be warranted. • Memorandum To: Michael J. McCauley, City Manager / \ From Ronald A. Warren, Planning and Zoning Speci is1 t� ( Date: November 9, 2000 Re: Industrial Park Land Uses You have requested my comments regarding land uses in the Industrial Park (I -1) zoning district as they relate to a proposal put forth by Mr. Sam Baxter for use of 6707 Shingle Creek Parkway. I have had recent discussions with him regarding an indoor go -kart track at that location. The use has also been characterized in some discussions as an indoor entertainment center and corporate business /conference center. The uses involved, as verified by Mr. Baxter, include a two -track facility for indoor go -kart racing. He has indicated that they would focus on activities for church, corporate, youth and local groups and could also provide conference space for holding meetings, lunches and other activities in connection with on • track activities. Arcade games, a snack bar, pro shop and conference facilities would all be considered accessory to the go -kart track operation. I have reviewed with Mr. Baxter the permitted and special uses allowed in the Industrial Park zone and also some of the history involved in the establishment of these uses in that zoning district. Permitted uses allowed include a variety of manufacturing activities; adult establishments (defined as a business where sexually oriented materials are sold, bartered, distributed, leased or furnished); various wholesale trade activities; certain service uses; public transportation terminals (excluding truck terminals); accessory uses; and other uses similar in nature to permitted uses as determined by the City Council. Special uses, (uses that may in some respect be incompatible with permitted uses in the zoning district, but which may be approved by the City Council after a finding that the use meets certain predetermined standards and is compatible with the existing neighborhood) listed in the zoning ordinance for the Industrial Park zone include foundries; textile mills; retail sales of products manufactured, processed, warehoused or wholesaled on the use site; accessory off site parking; certain commercial developments that are compatible with, complimentary to, and of comparable intensity to permitted 1 -1 uses and are listed in specific sections of the C -1 (Service /Office), and C -2 (Commerce) zoning districts; certain warehousing and storage uses; and other non - commercial uses required for the public welfare as determined by the City Council. . Attached for review is a copy of Section 35 -330 listing the permitted and special uses authorized in the Industrial Park zoning district and also sections from the C -1 and C -2 zoning districts highlighting uses that can be allowed as a special use in the Industrial Park zone. In my discussions with Mr. Baxter, I have advised him that his proposed use classification is a "recreation and amusement place" such as motion picture theaters and legitimate theaters, sports arenas, bowling alleys, skating rinks and gymnasiums as listed in Section 35 -322, Subdivision 3d of the zoning ordinance. It should be noted that certain aspects of his proposed use, namely the arcade, might also be classified as an "amusement center" which, is listed as a special use in Section 35 -322, Subdivision 3n. Neither of these uses or use classifications are uses allowed as a permitted or special use in the Industrial Park zone. They are uses confined solely to the C -2 (Commerce) zoning district and are special uses in that zone. If a use is not specifically listed or authorized as a permitted or special use in a zoning district, it is considered a prohibited use in that zone. Mr. Baxter has been advised of this. We .scussed the possibility of him filing a Planning Commission Application to seek a determination that his proposed use is "similar in nature" to a permitted use in the Industrial Park zone per Section 35 -330, Subdivision If. He agrees, however, that none of the uses listed are similar in nature to his proposal. It ism understanding he h pursue with the City Council the possibility of that wishes to urs Y g P tY P tY amending the Zoning Ordinance to allow his use in this particular zoning district. It should • also be noted that the review and analysis of Mr. Baxter's proposal conducted to date does not include a review of the appropriateness of this use in the particular building mentioned. Building code requirements for building modifications, air handling equipment, etc. would have to be met pursuant to the State Building Code. He would also have to meet zoning ordinance criteria such as parking requirements which are yet to be determined. Mr. Baxter should also be prepared to provide us with assurances that an appropriate lease agreement has been executed with the owner of the building or some other understanding has been reached regarding the building's use. I hope this memo addresses your inquiry. If you need additional information or clarification regarding the above, please let me know. 11 -8 -00 Page 2 q. Group day care facilities provided developments, in each specific case, are demonstrated to be: 1. Compatible with existing adjacent land uses as well as' with those uses permitted in the C2 district generally. 2. Complementary to existing adjacent - land uses as well as with those uses permitted in the C2 district generally. 3. Of comparable intensity to permitted C2 district land uses with respect to activity levels. 4. Planned and designed to assure that generated traffic will be within the capacity of available public facilities and will not have an adverse'impact upon those facilities, the immediate neighborhood, or the community. 5. Traffic generated by other uses on the site will not pose a danger to children served by the day care use. Furthermore, group day care facilities shall be subject to the special requirements set forth in Section 35 -412. Section 35 -330. I -1 INDUSTRIAL PARK. 1. Fgrmitted Uses a. The following manufacturing activities: 1. Food and kindred products as illustrated by: Dairy products Bakery products. Confectionery and related products 'Beverages, with the exception of malt liquors Macaroni, spaghetti, and noodles 2. Apparel and other finished products made from fabrics, leather, and similar materials. 3. Lumber and wood products, except saw mills and planing mills producing a dimensioned lumber. , City of Brooklyn Center 35 -36 City Ordinance 4. Furniture and fixtures. 5. Converted paper and paperboard products (as opposed to paper and paperboard manufacturing). 6. Printing and publishing and allied industries. 7. Chemicals and allied products as follows: Drugs Soaps, detergents and cleaning preparations Perfumes, cosmetics and other toilet preparations (compounding and packaging only) S. N iswell&ne *us plastic products. 9. Fabricated metal products as illustrated by: Office computing and accounting machines Household appliances Electrical lighting and wiring equipment Communication equipment, including radio and television . receiving sets Electronic components and accessories Screw machine products 10. Professional, scientific, electronic and controlling instruments, photographic and optical goods, watches and clocks. 11. Miscellaneous manufacturing such as jewelry and silverware, musical instruments and parts, toys, amusement; sporting and athletic goods and pens, pencils and other office and artistic material 12.- Assembly of electric powered vehicles. 13. Adult establishments. b. The following wholesale trade activities: 1. Automotive equipment 2. Drugs, chemicals and allied products • `, City of Brooklyn Center 35 -37 City Ordinance 3. Dry goods and apparel 4. Groceries and related products 5. Electrical goods 6: Hardware, plumbing, heating equipment and supplies 7. Machinery, equipment and supplies 8. Other wholesale trade similar in nature to the aforementioned uses such as paper and paper products, furniture, and home furnishings, and beer, wine and distilled alcoholic beverages, but expressly excluding petroleum bulk stations and scrap and waste materials and similar uses. c. The following service activities: - 1. Laundrying, dry cleaning and dyeing 2. Contract construction 3. Kennels • 4. Veterinarian and animal hospitals d. Public transportation terminals (excluding truck terminals). e. Accessory uses incidental to the foregoing principal uses when located on the same property with the use to which it is accessory. Such accessory uses to include without being restricted to the following: 1. Offstreet parking and offstreet loading. 2. Signs as permitted in the Brooklyn Center Sign Ordinance. 3. Storage of raw materials, work in process and inventory, provided such storage is within completely enclosed buildings. f. Other uses similar in nature to the aforementioned uses, as determined by the City Council. 2. Special ReaiA rements City of Brooklyn Center 35 -38 City Ordinance a. See Section 35-413 of these ordinances. 3. Special Uses a. Foundries, provided that the foundry operation is a necessary incident to a principal use permitted in the I -1 ' district. b. Textile mills. c. Retail sales of products manufactured, processed, warehoused, or wholesaled on the use site. d. Accessory off -site parking not located on the _same property with the principal use, subject to the provisions of Section 35 -701. e. Those commercial developments whieh,.in each.specific.case, are demonstrated to the City .Council to be: 1. Compatible with existing adjacent land uses as well as with those uses permitted in the I -1 district generally. 2. Complementary to existing adjacent land uses as well as to those uses permitted . in the I -1 district generally. 3. Of comparable intensity to permitted I -1 district land uses with respect to activity levels. 4. Planned and designed to assure that generated traffic will be within the capacity of available public facilities and will not have an adverse impact upon the industrial park or the community. and, which are described in Section 35 -322, Subsection 1 d, a (subparts 1 -6), f, (subparts 2 and 3); g through j; 3 m and 3 p. Such commercial developments shall be subject to I -1 district requirements of Section 35-400 and 35-413 and shall otherwise be subject to the ordinance requirements of the use classification which the proposed development represents. g. Warehousing and storage uses which, in each specific case, are demonstrated to the City Council to be: 1. Compatible with existing adjacent land uses as well as with those uses permitted in the 1 -1 district generally. City of Brooklyn Center 35 -39 City Ordinance 2. Of comparable intensity to permitted I -1 district land uses with respect to activity levels. provided such uses shall adhere to applicable requirements in the I -1 district and shall not involve maintenance or servicing of vehicles on the site. h. Other noncommercial uses required for the public welfare as determined by the Council, including accessory outside storage of materials when screened from public view by an opaque wall. ec 'on 35 -33 L 1 -2 GENERAL INDUSTRY. 1. Permi tted Usea a. The following manufacturing addvities. 1. Food and kindred products as illustrated by: Dairy products Bakery products Confectionery and related products Beverages, with the exception of malt or malt liquors Macaroni, spaghetti and noddles 2. Textile mill products. 3. Apparel and other finished products made from fabrics, leather and similar materials. 4. Lumber and wood products, except saw mills and planing mills producing dimensioned lumber. 5. Furniture and fixtures. 6. Converted paper and paperboard products (as opposed to paper and paperboard manufacturing). 7. Printing, publishing and allied industries. 8. Chemicals and allied products as follows: City of Brooklyn Center 35 -40 City Ordinance d. Accessory uses incidental to the foregoing principal uses when located on the same property with the use to which it is accessory, but not including any business or industrial accessory use. Such accessory uses to include but not be restricted to the following: 1. Offstreet parking and offstreet loading. 2. Garages and ramps for use by occupants of the principal use. 3. Playground equipment and installations including swimming pools and tennis courts. 4. Signs as permitted in the Brooklyn Center Sign Ordinance. 5. A real estate office for the purpose of leasing or selling apartment units within the development in which it is located. 6. Home occupations not to include special home occupations as defined in Section 35 -900. e. Licensed residential programs with a licensed capacity of seven to 16 adults or children required to be permitted by M.S. 245A.11, Subd. 3 and M. S. 462.357, Subd. 8. f. Licensed nonresidential programs with a licensed capacity of 13 to 16 persons required . to be permitted by M.S. 245A.14, Subd. 2. g. Licensed day care facility serving from 13 through 16 persons required to be permitted by M.S. 462.357, Subd. 8. 2. Special Reauirements a. See Section 35-410 of these ordinances. Section 35 -320. C1 SERVICE/OFFICE DISTRICT. 1. Perm itted j.Tses The following service /office uses are permitted in the Cl district, provided that the height of each establishment or building shall not exceed three stories, or in the event that a basement is proposed, three stories plus basement: a. Nursing care homes, (at not more than 50 beds per acre), provided, however, that such City of Brooklyn Center 35 -28 City Ordinance institutions shall, where required by state law, or regulations of the licensing authority, be licensed by the appropriate state or municipal authority. b. Finance, insurance, real estate and investment office. c. Medical, dental, osteopathic, chiropractic and optometric offices. d. Legal office, engineering and architectural offices, educational and scientific research offices (excluding laboratory facilities), accounting, auditing and bookkeeping offices,_ urban planning agency offices. ;(c e. Places for religious assemblies such as chapels, churches,. temples, mosques, and synagogues. 7* f. Beauty and barber services. , g. Funeral and crematory services. h. Photographic services. i. Apparel repair, alteration and cleaning pickup stations, shoe repair. j. Advertising offices, provided that the fabrication of signs shall not be a permitted use. J + k. Consumer and mercantile credit reporting services office, adjustment and .collection service offices. 1. Duplicating, mailing and stenographic service offices. m. Employment agency offices. E n. Business and management consultant offices. o. Detective and protective agency offices. p. Contractor's offices. q. Governmental offices. r. Business association, professional membership organizations, labor unions, civic, social and fraternal association offices. City of Brooklyn Center 35 -29 City Ordinance I7 74a US 6 / AJ C- -PQ ZONE 14 1Q.0 s. Accessory uses incidental to the foregoing principal uses when located on the same property with the use to which it is accessory. Such accessory uses to include but not be restricted to the following: 1. Offstreet parking and offstreet loading. 2. _ Signs as permitted in the Brooklyn Center Sign Ordinance. 3. The compounding, dispensing or sale (at retail) of drugs, prescription items, patent or proprietary medicines, sick room supplies, prosthetic devices or items relating to any of the foregoing when conducted in the building occupied primarily by medical, dental, osteopathic, chiropractic or optometric offices. 4. Retail food shops, gift shops, book and stationery shops, tobacco shops, accessory eating establishments, sale and service of office supply equipment, newsstands and similar accessory retail shops within multistory office buildings over 40,000 sq. ft. in gross floor area, provided: that there is no associated signery visible from the exterior of the building; there is no carry-out or delivery of food from the lot; and the total floor area of all such shops within a building shall not exceed 10% of the total gross floor area of the building. t. Other uses similar in nature to the aforementioned uses as determined by the City Council. u. Financial institutions including, but not limited to, full- service banks and savings and loan associations. v. Drop -in child care centers licensed by the Minnesota Department of Public Welfare pursuant to a valid license application, provided that a copy of said license and application shall be submitted annually to the City. w-. Leasing offices, provided there is no storage or display of products on the use site. x. Libraries and art galleries. 2. Snecial Rea rements, a� See Section 35-411 of these ordinances. 3. Snecial Uses a. Accessory off -site parking not located on the same property with the principal use, subject to the provisions of Section 35 -701. City of Brooklyn Center 35 -30 City Ordinance �f E2rK, ctsC s.�J �. -� Z.o &J C 07 w b. Group day care facilities provided that such developments, in each specific case, are demonstrated to be: 1. Compatible with existing adjacent land uses as well as with those uses permitted in the C1 district generally. 2. Complementary to existing adjacent land uses as well as to those uses permitted in the C 1 district generally. 3. Of comparable intensity to permitted C 1 district land uses with respect to activity levels. 4. Planned and designed to assure that generated traffic will be within the capacity of available public facilities and will not have an adverse impact upon those facilities, the immediate neighborhood, or the community. 5. Traffic generated by other uses on the site will not pose a danger to children served by the day care use. and further provided that the special requirements set forth in Section 35-411 are adhered to. c. Instructional uses for art, music, photography, decorating, dancing and the like and studios for like activity. d. Educational uses including post secondary schools, business schools, trade schools and the like, but excluding public and private elementary and secondary schools (K -12). ,Section, 35 -321., C1A SERVICE/OFFICE DISTRICT. 1. ,Permitted Uses (No height limitation) a. All of the permitted uses set forth in Section 35 -320 shall be permitted in a building or establishment in the C1A district. 2. Snecial Reauire a. See Section 35-411 of these ordinances. 3. Snecial Uses a. Accessory off -site parking not located on the same property with the principal use; subject to the provisions of Section 35 -701. • ', City of Brooklyn Center 35 -31 City Ordinance ? vviJ77 c2 Z4'SL- )AJ d Z-o,JE q,Z 5Pdc�fl(_ '24:S,5 / ,,J Z 4,aAJE' b. All of the special uses set forth in Section 35. -320 shall be allowed b special use P Y Pe permit in the Cl A district. Section 35 -322. C2 COMMERCE DISTRICT. 1. permitted Uses a. The retail sale of food b. Eating establishments, provided they do not offer live entertainment and further provided that the category does not permit drive -in eating places and convenience -food restaurants. C. T1=�e folowing uses: 1. The retail sale of heating and plumbing equipment, paint, glass, and wallpaper, electrical supplies, and building supplies. 2. The retail sale of tires, batteries and automobile accessories and marine craft accessories. • 3. The retail sales of apparel and related accessories. 4. The retail sale of furniture, home furnishings and related equipment. . 5. The retail sale of miscellaneous items such as the following: Drugs and proprietary items Liquors Antiques and secondhand merchandise Books and stationery Garden supplies Jewelry Flowers and floral accessories Cigars and cigarettes Newspapers and magazines Cameras and photographic supplies Gifts, novelties and souvenirs Pets Optical goods Sporting goods and bicycles • City of Brooklyn Center 35 -32 City Ordinance d. Service/office uses described in Subsection 1(b) through 1(u), Subsection 1(w), and Subsection 3(c) of Section 35 -320. e. The following repair /service uses: 1. Electrical repair service shops. 71- 2. Household appliances, electrical supplies, heating and plumbing equipment. 3. Radio and television repair service shops. 4. Watch, clock and jewelry repair service shops. 5. Reupholstery and furniture repair shops. 6. Laundering, dy cleaning and dyeing. 7. Equipment rental and leasing services. c f. The following medical and health uses: 1. Hospitals, not including animal hospitals. . 2. Medical laboratories. 3. Dental laboratories. 4. Nursing care homes, (at not more than 50 beds per acre), provided that these institutions shall where required by state law, or regulation or by municipal ordinance, be licensed by the appropriate state or municipal authority. g. The following contract/construction uses: 1. Building construction contractors' offices. 2. Plumbing, heating and air conditioning contractors' offices. 3. Painting, paper hanging and decorating contractors' offices. 4. Masonry, stone work, tile setting and plastering contractors' offices. 5. Carpentering and wood flooring contractors' offices. . City of Brooklyn Center 35 -33 City Ordinance 6. Roofing and sheet metal contractors' offices. 7. Concrete contractors' offices. 8. Water well drilling contractors' offices. 1� h. Educational uses including post secondary schools, business schools, trade schools and the like, but excluding public and private elementary and secondary schools (K -12). i. Accessory uses, incidental to the foregoing principal uses when located on the same property with the use to which it is accessory. Such accessory uses to include but not be restricted to the following: 1. Offstreet parking and offstreet loading. 2. Signs as permitted in the Brooklyn Center Sign Ordinance. 3. Outside display and sale of merchandise provided that an administrative permit is first obtained pursuant to Section 35 -800 of these ordinances. Other uses similar in nature to the aforementioned uses, as determined by the City Council. k. Drop -in child care centers licensed by the Minnesota Department of Public Welfare pursuant to a valid license application, provided that a copy of said license and application shall be submitted annually to the City. 2. SDe gial Reauirements a. See Section 35412 of these ordinances. 3. Special Uses, a. Gasoline service stations (see Section 35414), motor vehicle repair and auto washes provided they do not abut an Rl, R2, or R3 district, including abutment at a street line; trailer rental in conjunction with these uses, provided that there is adequate trailer parking space. b. The sale or vending at gasoline service stations of items other than fuels, lubricants or automotive parts and accessories (and other than the vending of soft drinks, candy, cigarettes and other incidental items for the convenience of customers within the principal building) provided adequate parking is available consistent with the Section 35 -704, 2 (b) and 2 (c). City of Brooklyn Center 35 -34 City Ordinance "� c. Drive -in eating establishments and convenience -food restaurants provided they do not abut an RI, R2, or R3 district including abutment at a street line. (However, convenience food restaurants without drive -up facilities and located within the principal structure of a shopping center of over 250,000 sq. ft. of gross floor area shall be considered a permitted use.) d. Eating establishments offering live entertainment; recreation and amusement places . such as motion picture theaters and legitimate theater; sports arenas, bowling alleys, skating rinks, and gymnasiums, all provided they do not abut an RI, R2, or R3 district, including abutment at a street line. e. The sale of motor vehicles at retail. f, The out -of -door display and sale of marine craft at retail. g. Transient lodging. h. Animal hospitals. i. Public transportation terminals (excluding truck terminals). j. Clubrooms and lodges. k. Accessory off site parking not located on the same property with the principal use, subject to the provisions of Section 35 -701. 1. Sauna establishments and massage establishments, provided they do not abut any residential (Rl through R7) district, including abutment at a street line. -- m. School bus garage facilities provided all storage, including vehicles, and minor servicing and minor repair shall be conducted wholly within an enclosed building and further provided it does not abut any residential (Rl through R7) districts, including abutment at a street line. n. Amusement centers provided the property on which the amusement center is to be located is not within 150 feet of any residentially zoned (Rl through R7) property. . o. Automobile and truck rental and leasing. p. Tennis clubs, racket and swim clubs and other athletic clubs, health spas and suntan studios. ' City of Brooklyn n Center 35 -35 City Ordinance y i City Council Agenda Item No. 7c MEMORANDUM TO: Mayor and Council Members FROM: Michael J. McCauley, City Manager DATE: November 9, 2000 SUBJECT: Appearance of Wayne Paulson Mr. Paulson has previously approached the City Council at Open Forum regarding his concern that barking dogs be removed from the owner's residence if they are not present to stop the barking. Attached are the results of the survey of other cities regarding this issue. The survey indicates that only the City of Minnetonka removed animals from the premises. I have reviewed this matter with Chief Downer for further exploration. Chief Downer is comfortable with the concept of removing animals from an open area or yard that are barking in violation of the City Ordinance and there is no one present to deal with the dog. In the past, Mr. LeFevere has expressed certain concerns regarding removal of an animal. With Chief Downer's support for a change that would allow the removal of a continuing nuisance created by a barking dog, so long as the removal did not require entry into a residence, I would recommend that the City Council request the City Attorney to review the ordinance to see if amendments can reasonably be made to facilitate police authority to remove a barking dog, similar to the practice in Minnetonka. ��ppKLYN CEpT POLICE BROOKLYN CENTER POLICE DEPARTMENT MEMORANDUM TO: City Manager Michael McCauley FROM: Joel Downer, Chief of Police DATE: November 8, 2000 SUBJECT: Brooklyn Center Ordinance - Chapter 1 - Animals Occasionally, residents in the city of Brooklyn Center are disturbed by dogs barking or howling while the resident of the home is not present. A current ordinance does not allow impounding animals that are disturbing. I support a revision of Chapter 1 that allows police officers, community service officers, and animal control officers to remove barking or howling dogs which are disturbing residents. Any dogs impounded for barking or howling must be in an open area or yard. I do not recommend impounding dogs that are disturbing but would require police employees to enter a residence or out building. I anticipate that a revision to this ordinance will address the concerns of neighbors who have been disturbed by dogs barking for several hours while they were unattended. JD:kh anord -1 me m Office of the City Manager City of Brooklyn Center A Millennium Community Michael J. McCauley City Manager October 17, 2000 Mr. Wayne Paulson 5330 Colfax Avenue North Brooklyn Center, MN 55430 RLs DOG ORDINANCES Dear Mr. Paulson: Enclosed please find the results of a survey conducted in response to your recent request that the City Council consider additional ordinance provisions to regulate barking dogs. As indicated in the materials, only Minnetonka has a policy or provision to remove a dog from the owner's property if it is barking. We had been waiting for responses from Brooklyn Park, Coon Rapids, ' and Richfield. Rather than wait any longer for those cities, I am forwarding the materials to you. This matter will be placed in a report to the. City Council at its November 13, 2000, regular meeting at 7:00 p.m. in the City Council Chambers as an agenda item. Sinc Michael J. ey City Manag MJM:mr c: Mayor and Councilmembers 6301 Shingle Creek Parkway Recreation and Community Center Phone & TDD Number Brooklyn Center, MN 55430 -2199 (763) 569 -3400 City Hall & TDD Number (763) 569 -3300 FAX (763) 569 -3434 FAX (763) 569 -3494 Office of the City Clerk City of Brooklyn Center A great place to start. A great place to stay. MEMORANDUM TO: Michael I McCauley, City M ger FROM: Sharon Knutson, City Clerk DATE: August 11, 2000 SUBJECT: Barking Dog Ordinances Attached are copies of ordinances regarding regulations on barking dogs from the following cities: . -Anoka -Golden Valley -Bloomington -Maple Grove *Champlin -Minneapolis •Crystal -Minnetonka •Fridley -New Hope A summary of the discussion Tara Jude had with each city's person responsible for enforcement of barking dogs is also included in front of each of the ordinances. Ms. Jude indicates that the City of Minnetonka is the only city she found that will remove a dog from the property if it is barking and the owner is not home. The other three cities which have been contacted but no response has been received are: Brooklyn Park, Coon Rapids, and Richfield. Ms. Jude is following up on these cities. From the ordinances which I had previously gathered regarding kennels, I found that the City of Coon Rapids also provides for removal of a dog if the owner refuses to comply with the ordinance and have attached a copy of the ordinance. Mr. Wayne Paulson had indicated to Anne Finn that the cities he believed had ordinances which allow for removal of dogs are: Bloomington, Minneapolis, Minnetonka, and Richfield. Attachments 6301 Shingle Creek Pkwy, Brooklyn Center, MN 55430 -2199 • City Hall & TDD Number (612) 569 -3300 Recreation and Community Center Phone & TDD Number (612) 569 -3400 • FAX (612) 569 -3494 An Affirmative Action /Equal Opportunities Employer guilty of a misdemeanor. In addition, the animal control authority shall' confiscate the dog and have it destroyed in a proper and humane manner and the costs thereof shall be the responsibility of the owner.[Revised 11/17/98, Ord. No. 16501 6 -124 Stopping an Attack. If any police officer or animal control officer is witness to an attack by an animal upon a person or another animal,-the officer may take-any appropriate means to bring the attack to an end and revent further injury to the victim, including destroying the dog `-if necessary [Revised 11/17/98, Ord. No. 1650] 6 -125 Dogs Distur b..na t Peace. It shall be unlawful for any person to own, keep, have in possession, or harbor any dog which howls, yelps, or barks to the reasonable annoyance of another person or persons. Any person violating this section, who upon first requested by a peace officer or the animal control authority to stop or prevent the annoyance, and refuses to comply with the ...request will be issued a citation or arrested in accordance with Minnesota Rules of Criminal Procedure, and, if the officer deems it necessary to stop the annoyance, may have the dog taken to the City animal pound. Any dog placed in the pound may be reclaimed by the owner in accordance with the provisions of 6 -112, and if not reclaimed may be disposed of in the manner provided in Section 6- 114. A violation of this Section shall constitute a petty misdemeanor. A violation of this Section after one or more convictions of similar offenses within the preceding twelve calendar months shall be a misdemeanor.[Revised 11/17/98, Ord. No. 1650] 6 -126 Removal o Excrement. It is unlawful for any person who owns or has custody of a dog to cause or permit such animal to defecate on any private property without the consent of the property owner or on any public property unless such person immediately removes the excrement and places it in a proper receptacle. A violation of this Section shall constitute as petty misdemeanor. The provisions of this Section shall not apply to seeing -eye dogs under the control of a blind person or dogs while "being used in City Police activity. [Revised 11/17/98, Ord. No. 1650] 6 -127 Community Seryi O fficers M a.v I ssue Citations. Community service officers may issue citations for'violations of this chapter, provided, that no community service officer may require a person served to sign a promise to appear with respect to any such citation. 6 -128 _penalties. Unless otherwise expressly provided, any violation of this Chapter shall constitute a misdemeanor. 6 -100 -9 City of Anoka (763) 576 -2700 Contact: Bob Summary of conversation regarding barking dog ordinance: ► After a first complaint the City will issue a verbal warning . ► After the second complaint the City sends a written warning ► At the time of the third complaint, the information regarding the situation goes to a judge. Enclosure: Fax copy of Anoka's C' - Orden ianue regarding barking dogs Sec. 5 -12, c. Du� cate t In case any dog or cat 1 :aq is lost a duplicate may be issue4 ' by the clerk upon the presstiring•of a receipt showing the paymeat-. of the license tee for the c)strent year. A tee established by the city council shall be p, d.d for each such duplicate tag. Sec. 5 -a Counterfa 1 �tin�. :3 lathorz zed re. cat tats. Ana. etc.. o dog y or It shall be unlawful o counterfeit or attempt to counter- feit the tags provided for erein, or to take from any dog or cat . -a tag legally placed upon it by its o4 SeS 5-9 TLkgs are not trimiterable Dog and cat tags are r. a , .: transferable, and no refunds shall be made on any dog or l,;cense. A i cla rr. Azlimal } srohibitions and Resula,� tl ;A Sec. 5- o Animals 'b 'SL No pig, horse, sheep,'Laar, lion, tiger, leopard, puma, lynx, ocelot, jaguar, cheetcz, goat, swine, mule, wolf, cattle, or any animal of vicious haliLts or likely to cause injury to any Person shall be kept within L city limits. - See. 5 - 3i Inoculation aO 3, S t rimes The owner of any anima; not prohibited within the city shall have the animal inoculated etg3inst rabies from time to time so as to maintain continuous proti against rabies and shall Possess proof of such inoculation and period of effectiveness from a licensed veterinariai,. Sec. 5 - 12 Rt}rVA-tna at - 1-x ej Oisioosal at_feces: B arkiny d29Z (a) Any animal not prciibited within the city shall not be permitted by the crier to run at large within the city. (b) Feces of any domes :.Lc animal shall be properly disposed of by the owner ar , t shall be promptly removed from any public property or uny private property not owned by the owner of the a, is mal. (c) The owner shall no. permit a dog to bark or cry so as to create a nuisanor: or disturbance. The provision of. this s; ration shall not apply to the ownership or use of seeing ace, dogs by blind parsons., dogs when used in police. activities by the City, or tracking dogs when used by or with the permission of the City. Article IT ,�; ; poundment: ouaraj't,ine, See. 5 -13 Esta blishment of L gWd 3 A city pound is hereby established for the purpose of enf g this chapter. The _hief of police shall be pound keeper. Section 5 -1 through 5 -19 amead-ti by Ord. 93 -920, effective 4- 23 -93. City Of Bloomington (952) 948 -8700 Contact: Animal Control, Barb Wegner 948 -3942 Summary of Conversation regarding barking dog ordinance: ♦ - The City of Bloomington can never take a dog away-hom its owner due to excessive barking ♦ A formal complaint must be submitted to the City before the Animal Control will investigate. A formal complaint consists of the name, address and telephone number of the reporter. ♦ Animal Control can issue a citation to a dog owner if they (animal control) witness the excessive barking ♦ A citation fine can reach as high as $75.00 ♦ If complaints as continuous the City can issue another citation or set up an Administrative Frocedure Order (APO) Enclosure: Bloomington's Animal Licenses and Regulations Printed copy of Bloomington Code which discusses noise made by dogs Part II, Chapter 14, Section 14.121 �Y Bloomington City Code Preface I I.Charter I II.Code I SEARCH II c ( Forward > II Part II. The Code Chapter 14 LICENSES AND PERMITS Section 14.121. NOISE MADE BY DOGS AND OTHER ANIMALS. No person owning, operating, having charge of, or occupying any building or premises shall keep or allow to be kept any dog or other animal which shall, by any noise, unreasonably disturb the peace and quiet as defined herein. (Added by Ord. No. 83 -58, 12- 19 -83; Recoditied by Ord. No. 95 -13, 8 -7 -95; Deleted and added by Ord. No. 96-58, 10- 21 -96) [ Tog ofof nape ] Section 14.121.01. COMPLAINTS. Any person may call or deliver a complaint to an environmental health officer, an animal control officer, or a licensed peace officer stating the facts and circumstances of an alleged violation of this Division. The environmental health officer, animal control officer, or licensed peace officer may investigate such complaint. If a violation occurs in the presence of the environmental health officer, animal control officer, or licensed peace officer, a summons may be issued. If a violation did not occur the presence of such officers but probable cause oft violation exists; all reports, witness statements, and evidence may be submitted to the Bloomington City Attorney's Office for a determination of whether a formal complaint should be issued (Added by Ord No. 87-27,4-20-87; Recodified by Ord No. 95 -13, 8 -7 -95; Added by Ord No. 96- 58,10- 21 -96) [ Ton of nab ] Section 14.121.02. PENALTY. Violation of any provision of this Division shall be a 1 of 6 08102/200011.45 AM City of Bloomington ANIMAL LICENSES AND REGULATIONS The following information is a synopsis of Bloomington City Code requirements. A complete copy of the animal regulations may be obtained from the City of Bloomington License Section, 2215 W. 01d Shakopee Rd., or by calling 948-8728. For more information or service with respect to the enforcement of this ordinance, call ANIMAL CONTROL at 948-3942. DOG LICENSE REQUIRED. All persons who own a dog within the City that is three month or elder shall have the dog licensed in accordance with this Division. DOG LICENSE APPLICATION PROCESS. Anolication. The application for a dog license shall request: the full name. home address, and phone number of the owner of the dog; the name, breed, color, age, and sex of the dog to be licensed; a current certificate of rabies vaccination for the dog; and any other information deemed to be necessary by the Issuing Authority. License Fee. The fee shall be paid at the time the application for the license is submitted to the Issuing Authority. License Duration. All licenses issued under this Vivition of this 'Cc-3e ; shah expire on December 31 of the year for which the license was issued. Penaltv Fees. In addition to the prescribed license fee, a penalty shall be assessed against a dog owner who did not obtain a license: • More than 30 days after the dog reached three.months of age; or More than 30 days after the applicant moved into the City with a dog older than 3 months of age; • By January 31 of the current year. Individual Do Lice nses NM Reouired for Kenn Licensees. Individual licenses for dogs kept in a kennel licensed under this Code need not be obtained by a kennel operator. • License Tao. Upon acceptance of the license application the Issuing Authority shall provide the dog owner with a metallic license tag, which shall be stamped with a number and the year for which the license was issued. If the metallic license tag issued for a dog is lost. the owner shall obtain a duplicate tag upon the payment of a fee. Transfer Fee. If a City licensed dog dies within the license year and a dog is secured by the owner to replace the previous dog, the license for the deceased dog may be transferred to the replacement dog upon payment of a transfer fee. Chanae in Ownership. If there is a change of ownership of a City licensed dog, the new owner must apply for a license within thirty days and pay the fee charged for a new license. Reciorocity_ Upon proof of current rabies vaccination, a dog owner who has a valid and current dog license from another city within the State of Minnesota may secure a Bloomington dog license by surrendering the other license and paying a transfer fee. RABIES VACCINATION REQUIREMENTS. Every dog, cat, or ferret shall be vaccinated against rabies. Timino of Vaccination. Dogs, cats, or ferrets that are too young to be vaccinated against rabies as indicated by the Compendium shall be vaccinated against rabies within 30 days after they reach the minimum age for vaccination as allowed by the Compendium. Revaccination. A vaccinated dog, cat, or ferret shall be revaccinated at intervals not to exceed the effective duration of the vaccination as listed in the Compendium. Newly Acouired or imoorted Animals,. Unvaccinated dogs, cats or ferrets that are acquired or moved into the City shall be vaccinated within thirty .days of purchase or, arrival, unless the animal is under the minimum age. Administration of Varcine nv Veterinarian Reauired, Because of techniques and tolerances, species limitations, and public health implications, animal rabies vaccines shall be administered only by or under the supervision of a veterinarian. Unvaccinated Animals. Any animal of a species for which no rabies vaccination is licensed for that ^y~ - species b the United States Department of Agriculture shall be considered unvaccinated for rabies, P Y P regardless of that animal's vaccination history. CAT LICENSES AND RABIES VACCINATION. Cat Licenses and Ral�jes Vanrinatign R,eauired. All persons who own a cat within the City that is three months or older shall have the cat licensed and vaccinated against rabies in accordance with this Division. Aonlication. The application for a cat license shall request: the full name, home address, and phone • number of the owner of the cat; the name, color, age and sex of the cat to be licensed; a current certificate of rabies vaccination for the cat; and any other information deemed to be necessary by the Issuing Authority. Ucense Fee. The fee shall be paid at the time the application for the license is submitted to the Issuing Authority. Ucense Duration. All licenses issued under this Section shall expire on December 31 of the year for. which the license was issued. Ucense Tan. A valid metallic or durable plastic license tag sMi1 be securely fastened to the cat's collar. If the cat is out-of-doors, either on the owner's premises but not confined or off the owner's premises, the collar or harness with the license tag attached shall be worn. r NOISE MADE BY DOGS AND OTHER ANIMALS. No person owning, operating, having charge of, or occupying any building or premises shall keep or allow to be kept any dog or other animal which shall, by any noise, unreasonably disturb the peace and quiet. Unreasonably disturb the peace and quiet is defined in City Code as follows: includes, but is not limited to, the creation of any noise by any animal which can be heard by any person, including animal control officers, environmental health officers or licensed peace officers, from a location outside of the building or premises where the animal is being kept and which no; occurs +pit per r 3eatedly over at feast a seven - minute period of time with one minute or less lapse of time between each animal noise during the seven - minute period, or repeatedly over at least a fourteen - minute period of time, at an average of at least twelve animal noises per minute. ♦ i #IOISE COMPLAIN l':�:' Any person may call or deliver a complaint to an environmental health officer, an animal control - officer, or a licensed peace officer stating the facts and circumstances of an alleged violation of this Division. The environmental health officer, animal control officer, or licensed peace officer may investigate such complaint. If a violation occurs in the presence of the environmental health officer, animal control officer, or licensed peace officer, a summons may be issued. If a violation did not occur in the presence of such officers but probable cause of a violation exists. all reports, witness statements, and evidence may be submitted to the Bloomington City Attomey's Office for a determination of whether a formal complaint should be issued. RUNNING AT -LARGE PROHIBITION. No owner shall allow or permit the owner's animal to be at-large within the City. An animal is at -large when it is off the premises owned or occupied by its owner and is unaccompanied by the owner. This includes cats. NOTIFICATION OF INJURED ANIMAL. Any person who, as the operator of a motor vehicle, strikes a domestic animal shall immediately report such injury or death to the appropriate taw enforcement official or the animal's owner. IMPOUNDMENT PROCEDURES Imooundment. Every animal found by an animal control officer or licensed peace officer to be in 'violation of state law or city code may be impounded in the City animal shelter. All animals impounded shall be confined in a humane manner. Recordkeeoina. Animal control officers shall maintain records of animals in their custody. Notification of Owner. Immediately upon impounding an animal, a city animal control officer or licensed peace officer shall make every reasonable effort to locate and notify the owner of the impounded animal. ' REGULATIONS REGARDING POTENTIALLY DANGEROUS AND DANGEROUS DOGS. - dogs. For specific There are regulations regarding both potentially dangerous and dang g p information contact an Animal Control Officer. GENERAL DOG REGULATIONS. Restraint. A custodian of any dog within the City shall keep the dog under restraint at all times. A dog is under restraint if: • the dog is within a secure vehicle; • the dog is within a secure fence or building within the owner's property limits; S the dog is picketed in accordance with this Division of the City Code; • the dog is controlled by a leash, provided that when persons or other animals are within twenty feet of the dog the leash is shortened to six feet; or • ' the dog: • is within private property, or is Involved in a scheduled dog show or obedience demonstration or trial, or is legally involved in hunting or retrieving I game animals; and • is controlled by a competent person and is immediatg� obedient to that person's command. Disoosal of Feces. A custodian of any dog within the City shall clean from any sidewalk, street, park, school, public place, or private property of another any feces of the dog and shall dispose of such feces in a sanitary manner. Violation of this provision shall be a petty misdemeanor. Picketina. A dog shall not be picketed so as to be within ten feet of any lot line or sidewalk or within fifty feet of any dwelling unit other than the owner's. A dog shall not be picketed in any front yard of a residence or building. Picket, as defined in City Code, is to secure a dog by means of a chain or metallic cable to a fixed object, thereby confining the dog to a specified area. Female Doa in Estrus. Every female dog in estrus shall be kept confined within a building in such manner that the dog cannot come in contact with any intact male dog except for proper breeding purposes Wki to su:r hl building: The female dog in estrus may be taken from the confined area on _ a secure leash _ controlled by a person of sufficient age or into a.confined outdoor enclosure within the owner's property in' order for the dog to urinate and/or defecate. License Tam, A valid metallic license tag must be securely fastened to the dog's choke chain, collar, or harness, which must be wom by the dog at all times. LIMITATION ON NUMBER OF.. DOGS AND CATS; KENNEL LICENSE. Limitation on Number of Dons and Cats. No person shall keep in any one household unit, lot, or premises or portion thereof more than four dogs or cats over six months old, or a combination thereof unless a person has a valid kennel license from the City. Kennel License Reauired. No person may operate a kennel as defined herein in the City without first obtaining a kennel license. REGULATIONS REGARDING CRUELTY TO DOGS. State Cruelty Provisions lncoroorated. The provisions of Minnesota Statutes, Sections 343.20- 343.37 (Prevention of Cruelty to Animals) and Minnesota Statutes, Section 346.57 (Dog and Cats in Motor Vehicles) as those provisions apply to dogs are hereby incorporated by reference and adopted as part of this Section. Transoortation Reauirements. No person shall carry or cause to be carried any dog upon any vehicle or otherwise, without providing suitable racks, crates, carriers or cages of suitable size for the dog during transportation, unless the dog is placed in the passenger area of the vehicle. REGULATIONS REGARDING DOG ENCLOSURES. Minimum Reauirements. A custodian of any dog which is kept outdoors or in an unheated enclosure shall provide the dog with shelter and bedding as prescribed in Minnesota Statutes, Section 343.40 and this Section of this Code as a minimum. Screening.. A dog enclosure shall be screened from view of all adjacent properties. Screening shall consist of a solid fence, or equivalent, as approved by the Manager of Environmental Services, not less .than five feet in height. The screening must include in its design provision for air to circulate under and through the screening material. All such screening must be constructed in a structurally sound and physically attractive - manner, and the screening must be maintained as to not create a blighting influence to the neighborhood. These screening requirements shall apply to all existing dog enclosures as well as future enclosures. Location. A dog enclosure shall not be placed closer than ten feet to any lot line or closer than fifty feet of any dwelling unit other than the owner's. A dog enclosure shall not be placed in the front yard of a 1 residence or building. Sanitation Requirements. No person shalt permit feces, urine, or food scraps to remain in a dog enclosure for -a eriod that is longer than what is reasonable and consistent with proper health and P 9 sanitation, or odor prevention. REPORTS OF PERSONS TREATED FOR ANIMAL BITES. Every person shall report to the Rabies Control Authority the name and address of any person inflicted by an animal bite within. the City. THE KEEPING OR SELLING OF WILD ANIMALS PROHIBITED. • No person shall own, possess, or have custody on his or her premises any wild animal for display, training, or exhibition purposes, whether gratuitously or for a fee. • No person shall keep or permit to be kept any wild animal as a pet. • No person shall offer for sale any wild animal unless specifically authorized by federal or state law. A wild animal is defined in Bloomington City Code as: every non -human species of the animal kingdom, including those born or raised in captivity, except the following: • domestic dogs (excluding hi -breds with wolves, coyotes, or jackals) properly vaccinated against rabies pursuant to law, • domestic cats (excluding hi -breds with ocelots or margays) properly vaccinated against rabies pursuant to law, • farm animals, including bees, Vietnamese pot - bellied pigs, and pigeons, provided that no more than one (1) Vietnamese pot-bellied pig and no more than five pigeons can be kept on any one (1) lot or premises, todente, including hamsters; mice, gerbils, white rats, guinea pigs, hedgehogs, capable of being maintained continuously in'cages, • rabbits, • captive -bred species of common cage birds, • small non - poisonous snakes, • chinchillas, non - poisonous lizards, and other similar small animals capable of being maintained continuously in cages, • fish, unless prohibited by state or federal law. • neutered male or spayed female domestic ferrets. TnTa1 P MA City of Champlin (763) 421 -8100 Contact: Champlin Police and Community Service Officers Summary of conversation with Community Service Officer regarding barldng dogs: ■ In response to the first complaint, an officer is sent,'to'Ahe in question. The officer make contact with the owner or leave a written warning about the dog's noise. ■ In response to a second complaint an officer is once again sent to the address in question. The officer can issue a citation if they choose. ■ The decision to issue a citation is left in the hands of the officer who responses. ■ Neighbors do have the option to write a formal complaint which would go to the City's prosecutor. i LAC.✓ fCGV[c( + lv �d ticc 0, ' City of Crystal (763) 531 -1000 Contact: Animal Control, Tom Mahon, 531 -5170 Summary of conversation with Tom Mahon: ► If -911- is dialed and a police officer will response to a barking dog complaint the officer must here the animal. ► The officer will listen for three to five minutes; if he witnesses the dog's continuous barking a citation is issued. ► If animal control is called regarding the animal, an animal control officer will be sent to the address. ► On. the first offense a written warning is typically issued by animal control. _. ► In response to a second complaint, animal control will issue a citation up to $25.00. ► The neighbor does have the option to submit a written complaint. However, the neighbor needs to be willing to sing his or her name and appear in court. ENCLOSURE: Faxed copy of Crystal City Code i _, rystal. city Cody .:, 910.09, Subd. 2 Subd. 2.. Receipts and tars. Upon the payment of the license fee, the clerk must execute a receipt. The clerk must deliver the receipt and metallic tag to the person who pays the fee. Subd. 3. Affixing tairs. The owner must attach the tag by a permanent metal fastening to the collar of the dog in such a manner i6t that tag may be easily seen by the officers of the city. The owner must insure that the tag is constantly worn by the dog. Subd. 4. Counterfeits. It is unlawful to make, sell, purchase, possess, or place or allow to be placed on a dog any metallic tag of the same. form, shape or t ' a wa y to counterfeit the de intended to be like the official , or to ahem �.n a ny y � . � p adopted for such official tag. Subd. S. Loot,, stolen, destroyed, or mutilated tae-s. If the metallic tag is lost, stolen, destroyed or mutilated after having been regularly issued, the owner or keeper of a dog, upon presenting and surrendering to the clerk the tag or receipt issued when the dog was registered, numbered, described and licensed, must receive a duplicate tag upon the payment of the appropriate fee. A person may not be granted a duplicate tag or license unless the original tag has actually been lost or stolen. The clerk may, before issuing such duplicate tag and license, require an affidavit to be made and furnished by the applicant for a duplicate license and tag, setting forth the fact that such tag has been lost or stolen and is not at the time in that person's possession. Subd. S. Removal. It is unlawful for any person, except the owner, the owner's authorized agent, a police officer or animal warden, to remove a license tag from a dog collar or remove a collar with an attached license from a dog. 910.11. Manner of keeping animals. Subdivision I. Sanitary conditions. It is unlawful to keep an animal in an unclean and unsanitary place or in an unclean and unsanitary condition so as to endanger the animal's health or safety. Subd. 2. Odors It is unlawful to own, harbor, keep or have in possession or on one's premises an animal in a manner that produces an odor that can be detected by any person from a location outside of the building or premises where the animal is kept. 6 ;%nQ'1Subd. 3. Noise It is unlawful to own, harbor or keep or have in possession or on one's premises an animal that by howling, yelping, barking, fighting or otherwise, produces noise that disturbs the peace, quiet or repose of a person of ordinary sensibility. �VY i Crystal City Code 640.01 (Rev. 1997) Section 645 - Noise control 645.01. Definitions. Subdivision 1. General. For purposes of this section, terms defined in this subsection have the meanings give;a them. Any other word or phrase used in this section and defined in regulations of the Minnesota pollution control agency air quality and noise pollution control, Minnesota Rules, chapter 7010 have the meaning given in those regulations. Subd. 2. "Air circulation device" means a mechanism designed and used for the controlled flow of air used in ventilation, cooling, or conditioning, including but not limited to, central and window air conditioning . � _ Crystal City Code 645.01, Subd. 3 (Rev. 1997) Subd. 3. "L10" means the sound level, expressed in decibels (dBA) which is exceeded • 10% of the time for a one -hour perio as measured by a sound level meter having characteristics as specified in the latest standards, S I A, of the American National Standards Institute and using test procedures approved by the noise control officer. Subd. 4. "L50" means the sound level similarly expressed and measured which is exceeded 50% of the time for a one -hour period. 645.03. Noises vrohibited. Subdivision 1. General vrohibition. It is unlawful to make or cause to be made any noise that unreasonably annoys, disturbs, injures or endangers the comfort, repose, health, peace, safety, or welfare of others or precludes their enjoyment of property or adversely affects the value of the pro.Derty. This general prohibition is not limited by the specific restrictions of the following subdivisions. Subd. 2. Motor vehicles. It is unlawful. to. operate.a motor vehicle in the city in violation of the motor vehicle noise limits of 6e Minnesota pollution control agency or in violation of the provisions of this section. Subd. 3. Horns. simmline devices. etc. It is unlawful to sound any signaling device on any vehicle except as a warning of clanger. Subd. 4. Exhaust, except motor vehicles. It is unlawful to discharge or permit the discharge of any steam engine, stationary internal combustion engine, motor boat, motor vehicle or snowmobile except through a muffler or other device that effectively prevents loud or explosive noises therefrom and complies with applicable state laws and regulations. Subd. 5. Exhaust. motor veldcles. Every motor vehicle must at all times be equipped with a muffler in good working order which blends the exhaust noise into the overall vehicle noise and is in constant operation to prevent excessive or unusual noise, and no person may use a muffler cutout, bypass, or similar device upon a motor vehicle or a street or highway. The exhaust system must not emit or produce a sharp popping or crackling sound. Subd. 6. Defective vehicles or' excessive loads. It is unawful to operate any vehicle in such a state of disrepair or overloaded so as to create loud and unnecessary grating, grinding, rattling, or other noise. Subd. 7. Loading. unloading. unlocking. It is unlawful to create loud and excessive noise 'in loading, unloading, or unpacking any vehicle. Subd. 8. Radios. vhonombhs. etc. It is unlawful to operate a radio receiving set, musical instrument, phonograph, stere.-o system, or other device for the production or reproduction of sound in such manner as to disturb the peace, quiet, and comfort of neighbors or others nearby. Operation of any such set, instrument, phonograph, machine or other device in such a manner as to be plainly audible at a property line or at 50 feet from a vehicle, structure or building in which it is located is prima facie evidence of a violation of this section. (Amended, Ord. No. 1997 -8, Sec. 1) - • Crystal City Code 645.03, Subd. 9 Subd. 9. Loud sneakers, amplifiers for advertising, etc. It is unlawful to use • or operate or permit the use or operation of any loud speaker, sound amplifier, or other device for the production or reproduction of sound when the sound is cast upon a street or other public place for the purpose of commercial advertising or attracting the attention of the public to any commercial establishment or vehicle. Subd. 10. Schools, churches, hospitals, etc. It is unlawful to create any excessive noise on a street, al`•ey, or public grounds adjacent to any school, institution of learning, church, or hospital when the noise unreasonably interferes with the working of the institution or disturbs or unduly annoys its occupants or residents. 645.05. Hourly restriction on certain operations. Subdivision I. Recreational vehicles. It is unlawful to, between the hours of 10.1a'cicxck p -.m. and 7 o'clock a.m., drive or operate any minibike, snowmobile or other recreational vr=Licic not licensed for travel on public highways. Subd. 2. Outdoor - Dower e-ouipment. It is unlawful to operate a power lawn mower, power hedge clippers, chain saw, or other outdoor property maintenance equipment except between the hours of 7 o'clock a.m. and 10 o'clock p.m. on any weekday or between the hours of 9 o'clock a.m. and 9 o'clock p.m. on Saturday, Sunday or holiday. This subdiviEdon does not apply to snow removal activities or to municipal or commercial outdoor property maintenance activities except that • commercial activities must not unreasonably disturb the peace, quiet, and comfort of nearby residents. In the case of emergencies resulting from unforeseen causes such as snow or wind storms this nection does not apply to reasonable and necessary remedial actions. Subd. 3. Refuse hauling. Garbage and refuse may not be collected or removed between the hours of 10 p.m. and 6 a.m. on a weekday or between the hours of 9 p.m. and 6 a.m. on Saturday, Sunday or a legal holiday. Subd. 4. Construction activities. It is unlawful to engage in or permit construction activities involving the use of any kind of electric, diesel, or gas Powered machine or other power equipment except between the hours of 7 o'clock a.m. and 10 o'clock p.m. on any weekday and 9 o'clock a.m. and 9 o'clock p.m. on Saturday, Sunday or holiday. 645.07. Receivine land use stars dards . Subdivision 1. Maximum noise levels by receivinz land use. It is unlawful to operate or cause to be operated any source of noise in such a manner as to create a noise level exceeding the limit set in table I for the receiving land use category specified when measured at or within the property line of the receiving land use. �Y Crystal City Code 645.07, Subd. 2 • Table I. Sound levels by receiving land use Day Night (7:00 a.m. - 10:00 p.m. )- (10:00 p.m. - 7:00 a.m. ) Zonine district 1150 L10 .: _. L50 L10 Residential E1 65 50 55 Commercial 65 70 65 70 Industrial r. 5 s0 75- 80 In the event that the property oil which an industrial or commercial noise source is located abuts residential property, the noise source in question must not exceed an := LIO,noise level of 60 dBA in the daytime (7:00 a.mi. to-:10- 00-p and an LSO noise level of 50 dBA in the nighttime (10: 00 p . m . to 7: 00 a . m.) as measured on the Property line abutting the source. Subd. 2. Exemptions. The levels prescribed in subdivision 1 do not apply to streets owned, operated and maintained by the city. 645.09. Motor vehicle sound level requirements. Subdivision 1. A motor vehicle operated or driven on any highway within the city must comply with the noise limits of the state of Minnesota. Subd. 2. Mufflersi noise limits. Minnesota Rules 7010.1000 to 7010.1600 are adopted and incorporated by reference. Subd . 3. A motor vehicle with a manufacturer's gross vehicle weight rating of 9, 000 pounds or less operated or driven within the city, on any highway, public property, or private property tivithin a city, must also comply with the following standards when a stationary tes procedure is used: , • Automobiles, vans, light trucks 95 dBA (GVWR - 10,000 pounds or less) Motorcycles 99 dBA 645.11. Air circulation devices. It is unlawful to install or place any air circulation device except a window air conditioning unit in any location until the noise control officer determines that the 'device in that location will comply with the noise level standards prescribed in section 4: and issues a permit for the installation. The noise produced by any window unit wad by any existing air circulation device must be attenuated by means deemed appropriate by the noise control officer, including, but not limited to, relocation of such device, if the noise results in or contributes to a violation of .subsection 645.07. Crystal City Code 645.13 • 645.13. Exception for emergencv work. Noise created exclusively in the performance of emergency work to preserve the public health, safety, or welfare or in the performance of emergency work necessary to restore a public service or eliminate a public hazard is exempt from the provisions of this ordinance for a period not to exceed 24 hours after the -work is eommeneed -Persons responsible for such work must inform the noise control officer of the need to initiate such work, if the work is commenced during non - business hours of the city, then at the beginning of business hours of the first business day thereafter. A person responsible for such emergency work must take all reasonable actions to minimize the amount of noise. 645.15. Powers and duties of noise control officer. Subdivision 1: Administering officer: The noise control program established by this section is administered by the noise control officer, who is appointed by the city manager. _. ;;ubd 2: Testine prccedu,� yes . The noi€.e control offices mtist adopt j a�idylix�es establishing the test procedures and instrumentation to be used in enforcing the provisions of section 4. A copy of such guidelines must be kept on file in the clerk's office and must be available to tine public for reference during office hours. Subd. 3. Studies, etc. The noise control officer must conduct such research, monitoring, and other studies related to sound as are necessary or useful in enforcing this section and reducing noise in the city. The officer may make such investigations and inspections in accordance with law as required in applying • ordinance requirements. Subd. 4. Noise impact statements. The noise control officer may require any person applying to the city for a change in zoning classification or a permit or license for any structure, operalion, process, installation or alteration, or project that may be considered a potential noise source to submit a noise impact statement on a form prescribed by the officeer. The officer must evaluate each such statement and make appropriate recommendations to the council or other agency 'or officer authorized to take the action or approve the license or permit. Subd. 5. Other powers and duties. The noise control officer may exercise such other powers and perform E.uch other duties as are reasonable and necessary to enforce this section. 645.17. Variances. Subdivision 1. Authority. The city council may grant variances from the requirements of subsection 645.07. Subd. 2. Application. A person seeking a variance must file an application therefore with the noise control officer on a form prescribed by the officer. The application must state the dates during which the variance is proposed, the location of the noise source and times of operation, the nature of the noise source, reasons Why the variance is sought, steps taken to minimize the noise level, and such other information as is required by the noise control officer. if the application is for a variance for more than three days, the noise control officer must give mailed notice of the requested variance to all property owners within at least 500 feet of the noise source. Any person claiming to be adversely affected by the variance applied for r may., within ten d of mailing of the notice file a statement with the noise control _ Y Y � _ officer in support of the claim. Crystal City Code 645.17, Subd. 3 • Subd. 3. Action on application. The council may grant a variance only if it finds that full compliance with - the sound level requirements of this section would constitute an unreasonable harfthip on - the applicant, on other persons, or on the general public. In determining whether to grant or deny the application, the council is to balance the hardship to the ,applicant against - adverse impact on the health, safety, and welfare of the pal-sons affected, the adverse impact on property affected, and any other adverse effects of granting the variance. The variance may be granted subject to conditions, including a time limit. 645.19. Enforcement. Subdivision 1. Notice of certain violations. When the noise control officer determines that a noise exceeds the maximum sound level permitted under subsection 645.07, the officer must give written notice of the violation to the owner or occupant of the premises where the noise originates and order such person to correct or remove each specified violation within such reasonable time as is prescrIb d in :he notice. The f &[lure - to remove or c�=�rrect any such violation v:;thfa' the time so prescribed is a violation of this section. Before issuing citations for violations of sections 2, 3, 5, or 6, the noise control officer must provide the violator with notice and an opportunity to comply, unless the officer determines that the violation is not of a continuing or ongoing nature such that compliance can be readily confirmed at the end of a reasonable period. 4 Subd . 2. Penalty. Violation of this section is a petty misdemeanor and, upon conviction, the violator may be punished by a fine not to exceed ;100, plus the costs .. of prosecution. Each act ,of violation and each day a - violation occurs or continues constitutes a separate offense. The imposition of one penalty for any violation of this section does not excuse the violation, or permit it to continue. Subd. 3. Civil remedies. This section may be enforced by injunction, action for abatement, or other appropriate civil remedy. Section 650 - RecvcUng 650.01. Definitions. Subdivision 1. , For purposes of this section, the following terms defined in this subsection have the meanings given them. Subd. 2. "Carryout collection service" means the collection of recyclable materials accumulated in recycling containers from a location at a dwelling unit other than the location designated by the recycling authority for regular collection. Subd. 3. "Dwelling unit" means a residential structure in the city that is designated by the recycling authority to receive recycling collection services . Subd. 4. "Generator," "trdxed municipal solid waste," "recyclable materials," and "recycling" have the meanings g ive n those ~^ iv terms in blinnesota Statutes, section 115A.03, subdivisions 12, 21, 25a and 25b, respectively. City of Fridley (763) 531 -1000 Contact: Dale Warren, Community Service Officer Summary of conversation regarding the City of Fridley's barking dog ordinance: ♦ In response to a barking dog complaint a community service officer will be sent to the address ♦ If the officer can hear the dog for five to seven minutes the officer will file a report and speak with the owner ♦ In response to a second complaint a letter would be sent to the owner of the dog. The letter warns the owner that a third complaint about the animal will lead to a citation ♦ A citation general costs $25.00 N \00'erW N� City of Golden Valley (763) 593 -8000 Contact: Golden Valley Police Department, Amanda Johnson Summary of conversation regarding barking dog ordinance: • In response to a complaint a police or community service officer will be sent to the address • The officer sits for at least five minutes listening for the dog • When a violation has occurred an officer will issue a verbal warning if the owner is home, otherwise a written warning will be attached to the house • In the response to a second complaint an officer will response to the house and issue a citation. Enclosure: Faxed copy of Golden Valley City Code Subdivision 8. Dogs and Cats Disturbing the Peace R t t § 10.30 '01ation of this Section and the Animal Control Officer or any police officer may impound W d destroy any animal described in such order of the Court. The provisions of this bdivision are in addition to and supplemental pp al to other penalty provisions. B. In addition to the above misdemeanor prosecution and Court proceedings, any person charged with a violation of this Subdivision shall immediately effectively confine the dog subject to the complaint within a [ - wilding or a totally secure enclosure, except when securely muzzled and controlled on a leash by a competent person, pending final judicial disposition of the matter. C. in addition to other requirements of this Section, the Department of Public Safety may take up and impound any dog found at large in violation of this provision, and release it only upon order of the Department of Public Safety after compliance with all the requirements of this Subdivision as well as payment of the fees Provided in this Sec_ tion. Source: Cky Code Effective Date: 6 -30-88 Subdivision 8. Dogs or Cats Disturbing the Peace It is person to keep or harbor a dog or cat which barks, cries, squeals, howls or meows r any excessively, continuously or in an untimely manner. The phrase "barks, cries; squeals, howls or meows, excessively, continuously or in an untimely manner" includes, but is not f ted to, the creation of any noise by any dog or cat which can be heard by any person. luding a law enforcement officer or animal control officer, from a location outside a of the ullding or premises where the dog or cat is being kept, and which noise occurs repeatedly over at least a five minute period of time, with a thirty second or less lapse of time between each animal noise during the five minute period. Source: Ordinance No. 90, 2n° Series Effective Date: 5 -21 -92 Subdivision 9. Interference With Officers. It is unlawful for any person to take or attempt to take from any person authorized under the terms of this Section, any dog or cat taken up in compliance with this Section or in any manner to interfere with or hinder such person in the discharge of his duties under this Section. Source: Ordinance No. 11, 2n Series Effective Date:' Subdivision 10. Offenses; l Tags. t is unlawful t 8 counterfeit, counterfeit or alter the tags provided for in this Section or to give false formatio to concerning vaccination requirements under this Section, or take from any do a tag leg Placed upon it by its owner with the intent to place it upon another doilly tag upon another dog. g, or to place su h O LDEN VALLEY CC 207 (6- 15-98) TOTAL P.02 t City of Maple Grove Contact: Maple Grove Police, Community Service Officer Ann Sargent, 494 -6121 Summary of conversation regarding barking dog ordinance: ♦ The Maple Grove Community Service Officers handle any barking dog complaints that take place during the daytime hours ♦ At the first complaint an officer will go and park at the address for 10 minutes (Ordinance only reads 5 minutes). The officers counts how many times the dog barks continuously with a lapse time of 30 seconds or less. ♦ If the barking is continuous for at least five minutes a violation has occurred and a the owner will receive a written or verbal warning. ♦ At the second complaint, the officer will return to the house, and count for a violation. If a violation has occurred a citation is issued to the Utimcr. ♦ If the officer has to visit the home for a third comp omplaint a formal complaint is sent to the City prosecutor. Enclosure: Faxed copy of Maple Grove City Ordinance regarding barking s Section 430:39 430:39. , (Rev. 1993) (b) In addition to punishment of the owner, keeper or harborer of the animal as prescribed ' herein, the animal committing such act of nuisance shall to subject to impoundment Subd. 2. Upon circumstances described in Subd. 1(a)(4) above or upon the receipt of at least two (2) written complaints setting forth any facts concerning the actions of a particular animal or animals, Which actions are a violation of this Ordinance code or the laws of this State the animal, if impounded,. shall be subject to disposal pursuant to the provisions of Section 430:54, Subd. 4, if the animal continues to commit such acts after the Animal Control Officer notifies the owner of such animal of the acts complaiaaed of and requests that the atonal be restrA ned from committing any more such acts. (Amended, Ord. Nos. 90-39, Sec. l; 93 -24, Sec. 1) �( action 430:39. �No person, owner or keeper of an animal shall allow such animal to make `7 noise so as to cause annoyance, disturbance, or discomfort of any person. Subd. 1. It shall be a,violation of this Sectim 430:39 if _ r, •_; ., . .. - (a) The noise can be heard fiem a locetion outside of the building or pm ety where the animal is being kept and at a distance of at least one hundred (100), feet fronri sad property; and (b) The noise occurs repeatedly over a period of time of at least five (5) minutes, during . which the lapse of time between each animal noise is thirty (30) seconds or less. �i Subd. 2. The noise described in Subd. 1 above is not a violation if it occurs in �njtiorictioni � harassment or injury to the animal from someone or something other than the owner or keeper of the animal, or in conjunction with a trespass upon the property where the animal is located. This Subd- 2 shall not be an element of the offense, but rather an affirmative defenses (Amended, Ord. Nos. 81.26, Sec. 1; 90-39, Sea 2; 93 -24, Sec. 2) Section 430:42. Animals Biprig HumjM B Subd. 1. VAnnevar an owner within the corporate limits of thb municipality shall learn that his or her animal has bitten a human being, such person shall immediately confine the said animal m a place where it cannot escape or have access to any human being or other animal. He shall also immediately notify the Maple Grove Animal Control Officer andfor'the Maple Grove Police Department' Subd. 2. Whenever the said Animal Control Officer or an officer of said police department shall learn • that a human being has been bitten by any animal, said officer shall ascertain the identity of the animal and the person owning barboring our possessing it and shall immediately direct such person to forthwith confine such animal as deemed appropriate by the said Animal Control Officer or Maple Grove Police Officer. (a) Any animal so ordered confuted shall be confined as so directed for a period of at least ten (10) days, kept apart from other animals and under the supervision of a veterinarian until it is determined whether such animal had or has a disease which might have been 1 transmitted by such bite. TOTAL P.02 F ' City of Minneapolis Contact: Animal Control, 348 -4250 Spoke with Jake/Received fax from Bob Marotto Summary of conversation regarding barking dog ordinance.: ■ Animal Control is the only department who handles :enforcement ■ Minneapolis is launching a Pilot Project, using new procedure as much as possible ■ At no time can the City of Minneapolis take a dog away from its owner because of noise violations. Old Procedure • After the first complaint a letter is sent to owner of dog within 7 to 10 days of the complaint • If a second complaint occurs a person from animal control is sent to the address. Th€: goal of animal control is to make contact, with the owner and f!yy to come UP with a solution New Procedure • After the first complaint Animal Control is sent to the address and attempts to make contact with the owner. Animal Control will also attempt to get a recording of the dog. A recording is evidence in the event that complaints continue • At a second complaint contact is made with the owner again. The owner is warned that any further complaints could led to mediation and a fine up to $700.00 • In the event of mediation, the recording of the dog can be used as evidence. Enclosure: Printed copy from Internet of Minneapolis Code regarding Dogs Disturbing the Peace Title 4, Chapter 64, 64.90 Packet faxed from Minneapolis Animal Control explaining new pilot project F..:.. Animal Control Unit, Licenses & Consumer Services, Regulatory Services, City of Minneapolis Barking ilot Project: 9 J Complaints and Enforcement Effective 3 June 2000. Overview A different abatement and enforcement procedure will be used to deal with nuisance barking complaints during the pilot project scheduled from June through August (or September), 2000. This procedure will produce a direct and timely response to each and every nuisance barking complaint received by the Animal Control program. During the barking pilot project these responses will be provided 24 hours a day /7 days a week. : Wednesday through Sunday nights an animal control,officer (ACO) on duty at the shefter',0 provide a response to barking complaints, complaints about at large dogs, and the select calls previously handled by the on -call ACO. On Monday and Tuesday nights there will be an on -call ACO who will respond to barking complaints, complaints about at large dogs, and other select calls. (The select calls are assistance to law enforcement personnel; aggressive animal complaints; animal bites when there is any question about the quarantine; injured animals without an owner present and calls regarding rabies exposures from bats.) It is hoped that a timely responses by an ACO who makes contact with the owner or custodian of the barking dog will ordinarily abate nuisance barking in an effective manner. When they respond to these calls an ACO will also use a tape recorder and report form to document any barking they hear but do not themselves stimulate at the address in question. This documentation will be the basis of cases that are presented to the City Attorney for prosecution and /or mediation. It should be noted that the petition process might still be used to address a nuisance- barking situation. The guidelines for this process would remain the same as they have been in the past, namely, three signatories from different households each of whom keeps a barking log for a period of approximately five (5) days. The New Procedure Several basic elements of the new procedure deserve discussion. First, there must be at least one complainant who will identify him or herself and who will agree to appear as a witness in any court proceedings. This is necessary because a person must be disturbed in order for there to bo- a violation under the existing nuisance barking ordinance (MCO 64.90). Second, ACOs will document nuisance barking at a particular address. Each and every time an ACO responds they will complete a report, indicating whether a dog was barking (with or without unusual stimulation); and if a dog is barking upon their arrival, they will record the barking using a tape recorder. These tapes will be preserved as evidence showing that barking at a particular address is habitual (as it must be for MCO 64.90 to be violated). In this way, a third party will become responsible for documenting nuisance barking. Third, barking cases will be referred to the City Attorney for prosecution and/or mediation if a violation is documented on three separate occasions. (This rule will be referred to as "three strikes and your out. ") These violations could be on three consecutive days or they could be S spread out during a longer period of time. Fourth, the City Attorney will "fast track" the barking cases that they charge. Initially. the mediator at the Office of City Attorney will contact the involved parties to determine whether they would agree to timely mediation. If mediation is not agreeable to one or more of the parties, or if mediation Is unsuocessful, the case will be prosecuted as a misdemeanor offense. A conviction thus could be as much as 90 days in jail and/or a $700 penalty.plus.any restrictions imposed by the court on the owner of the barking dog. Finally, Animal Control will continue to respond to and document complaints after a case has been referred to the City Attorney. This will ensure that valuable evidence is available in the event prosecution is necessary. And in the case of chronic problems with persons who are not resolving a barking problem, this documentation would support a stiffer sentencing - recommendation including that a dog be removed from a particular address. Barking Complaints - 1. Elements of a Complaint Two elements must be available for Animal Control to accept and investigate a barking complaint: (1) a complainant who identifies him or herself, and (2) an exact address for the complaint. These are described further below. Complainant Identification: Complaints will only be accepted and investigated if the person • making the complaint identifies him or herself. Complainant identification is required because a violation under the existing ordinance (MCO 64.90) requires that the habitual barking of a dog disturb someone. In this regard, complainants should be informed that they are expected to appear as a witness If the City Attorney charges a barking complaint and brought to court. Address Identification: Complainants are expected to positively Identify the address at which the barking dog resides. They will be asked to do so before a complaint is accepted to ensure that Animal Control does not go to a particular address without good reason. 2. Activities in Chameleon Each activity for a barking complaint should identify the address of the alleged violation and provide complete information about the complainant. Information about the dog owner and dog would be incorporated into the activity later on the basis of contact in the field. More detail about these steps is provided below. Activity Sequences: A new activity will be created for a first complaint about nuisance barking at a' particular address. All subsequent complaints for the same address will be re- sequenced unless there is a reason to think that there is a new resident dog owner. Complainant Information: Create or insert a person identification record In Chameleon with the full name, address, and phone number of the complainant. (Note that a complaint can be accepted if the complainant does not have a phone of his or her own.) This information is critical in documenting that a barking dog has disturbed a person in the neighborhood. And the City 2 Attorney needs this information to create a complete witness list if and when they charge out a barking. Dog Owner and Dog Information. The investigating officer will gather this information. The information will be incorporated into and entered by the data entry person on the basis of an issued written warning and/or a barking report form. 3. Responses and Resolution Complainants can be told how Animal Control responds to barking complaints and how the City Attorney prosecutes these complaints. They can also be told about the service available from Minneapolis Mediation and made aware that the petition process still exists If they would prefer to use that process. Animal Control Response. We will inform complainants that an AGO will respond to their complaint In a timely manner, and that initially the ACO will make contact with the dog owner if they observe (or hear) a violation. The officer will inform the dog owner that there is a nuisance barking ordinance and that Animal Control has received a complaint about their dog being in violation of:.this ordinance; educate the owner to the extent possible about ways that they can remedy a barking problem; and document the barking that they hear when they arrive at We address in question. Also, tell complainants that the City Attorney will prosecute offenders. A conviction for a MCO 64.90 offense could be up to 90 days In jail and /or a fine of up to $700. Referrals and Alternative Reso"ons. It may be appropriate to refer the complainant to Minneapolis Mediation (612 -359 -9883) to explore altemative approaches to dispute resolution. Providing this information is appropriate when a complainant expresses reluctance to make a complaint or Indicates that s/he would prefer to speak to the neighbor who owns the dog before making a complaint Other Issues. Information is provided in the following sections about the specific steps involved in enforcement. But it will be necessary to explain that we have created a new procedure for the barking pilot project in order to more effectively abate nuisance barking in our neighborhoods. This procedure is recommended but the petition process is stilt available if a complainant thinks that would work best. Responding to Barking Complaints A 9 8 P 1. First Complaint Responses Responses to the first complaint about a barking dog at a particular address are intended to abate any barking that is occurring through positive contact with the owner or custodian of the dog. In addition, we will begin the enforcement process by notifying the owner or custodian of their legal requirements and documenting any barking that is heard. These and related steps are described below. Documenting barking at a particular address is the Initial step in a response to a complaint about barking. A report form should be completed, and if there is barking, yelping, etc., that has not been caused by your arrival, these noises should be recorded using a tape recorder. if nothing is heard within a five minute period, the call may be cleared "no violation observed" (or "no violation observed" and "warned" If a written warning for licensing was issued. But if animal noises are heard, you should record the noises for up to 10 minutes, and then proceed to make contact with 3 the owner in person or by posting. In these cases, you should clear "report" (or "report' and "warned" if a written warning for licensing was issued). • Noflfying a dog owner that a complaint has been received will be a primary purpose of our response to a first complaint about a barking dog when a violation is heard. Owners should also be notified that the city of Minneapolis has a nuisance barking ordinance (MCO 64.90), and that the Animal Control program responds to complaints about violations of this ordinance. Educating owners, as needed, will be another primary purpose of our response to a first complaint about barking. A copy of the handout entitled- Ttoe- Commu nicating Canine (which previously we sent to dog owners) specific suggestions for - curbing barking may be provided to the dog owners or custodian. A list of area obedience clubs Is also available to owners who may want help from an obedience trainer or an animal behaviorist. Posltive public confect, finally, is our goal in responding to all first complaints about barking. We want to be proactive, positive and persuasive. Owners should become aware that there is a Problem with solutions so that, hopefully, there will be no need for enforcement. We want to encourage dog owners to resolve any issues related to barking on their own, and if necessary, to talk to their neighbors about how to best resolve such issues. It is imperative that we use our professional presence and our communication- skills to persuade people to try to resolve any neighborhood tensions em their own or by using services such as Minneapolis Mediation. Complaint results on a first complaint generally will be one of the following: (1) no violation observed when no barking is heard; (2) written warning for licensing and no violation observed; (3) report when a violation has been documented and the owner notified; and (4) a written warning for licensing plus a report for a barking violation. 2. Responses to Subsequent Complaints • Responses to all subsequent complaints about barking will primarily be concerned with documenting any potential violations of MOO 64.90. It is expected that you will be out on the call, in earshot of the address In question, from three to five minutes. If no barking is heard in that period of time, you should clear the call "no violation observed." If barking or other noises are heard, however, these will need to be documented. A barking report form should be completed. And you should use a tape recorder to record the barking for between five and ten minutes. You should document any barking you hear in this way each and every time you respond to a barking complaint. Reports should be turned with your daily paperwork. Tapes should be placed into an envelope and stapled to the report (This procedure Is the some one used with photographs for bite reports.) Tapes themselves must be marked with the activity number and sequence; date and time; and name and badge number of the recording ACO. There is no need to make contact with the dog owner or custodian after an initial contact except as discussed in the following section. 3. Notibcation of Consequences Contact will be made with the dog owner or custodian at a particular address the second time that we observe and document a violation of MCO 64.90. With respect to our activity number in Chameleon, this would mean that a barking report has been made on one of the prior sequences. 4 Our purpose in contacting the dog owner at this time Is to inform him or her of the potential consequences for not figuring out how to stop the dog from barking in a way that disturbs one or • more neighbors. These consequences are, first, that the case will be referred to the City Attorney I we observe and/or document a third violation; and second, that the City Attorney may prosecute the dog owner for a misdemeanor offense with a penalty of up to $700 and /or 80 days in jail. Related Issues Three other issues related to our response to nuisarce bark'inAornplaints are discussed in this section. 1. Postings and Follow-up It may not be possible to make contact with a resident dog owner or custodian after documenting a nuisance barking violation at a particular address for the first and/or second time. If this happens, a written warning should be posted to the resident dog owner or custodian. (The pink copy of the warning form has been a adapted for this purpose.) All postings of this kind should indicate that a barking violation was observed (or heard) by an ACO who responded to a complaint about a particular address. They should also say whether it Is the first or second violation that has been observed, and it it is a second violation, indicate the consequences of another one ( "three strikes and your out "). Finally, they should also invite the owner or custodian to contact our office for further information about the new procedure. y We should identify the resident dog owner or custodian In person rather than on the basis of Animal Control records when we make contact. This is essential to effective prosecution. For this reason it will be necessary to follow -up and obtain this information if necessary when a warning is posted. 3. Prioritization All barking complaints are to be prioritized as having the same status as loose or al ") call. Whether one responds to a barking complaint or a loose dog call first will depend upon location and decisions about how to best manage a call load. All barking complaints are prioritized after complaints regarding animal bites, aggressive animals, injured animals,, urgent welfare checks as well as requests for assistance or support from other law enforcement agencies. They are prioritized above calls about stray animals that are being held, complaints about fees, requests to remove deceased animals, etc. This prioritization of barking complaints is Intended to ensure a timely response capable of abating and/or documenting nuisance barking at a particular address. 2.Ovemight Contact Overnight contact with the owner or custodian of a barking dog will only be made with the assistance of a police officer. This rule applies to calls handled by the overnight AGO as well as ACOs with a specials assignment or shift on Monday, Tuesday, Saturday or Sunday night. The procedure will be to respond to an overnight barking complaint by going to the address in question and determining whether there Is a violation. If there is no violation, then you should 5 clear without taking any action. if a violation is observed (or heard), it should be documented for a period of between 5 and 10 minutes using a tape recorder. Once the violation is documented you should request police assistance through MECC and then stand -by until a squad arrives. • Contact with the owner or custodian would then be made with police assistance according to the procedures discussed earlier. Be sure to record the squad number and badge number of the officers who assist you on the barking report form, which should be completed for any overnight complaints involving public contact Prepared by Robert A. Marotto, Manager, Animal Control Unit May 30, 2000 • 6 MINNEAPOLIS ANIMAL CONTROL 506 Eleventh Avenue North 348 -4250 • TO: Date: ADDRESS: ' C 1aint(s) have been received regarding the alleged violation of the Animal rol Ordinance as checked below. Continued or future violations could result in tags being issued or a court appearance. EXCERPTS FROM THE CQff of oRDiNMiC�,,, CITV OF MINNEAPOLIS [] LICENSE REQUIRED, DURATION. FEE - All dogs'and cats kept within the City mu be licensed. Annual fee is $10.00 for spayed or neutered dogs or cats, $15.00 for unaltered dogs and cats. Licenses expire each 31. (Section 64.10) [� COLLARS - All dogs and cats kept within the City must have a collar around the neck of the animal with the license tag securely attached to the collar. (Section 64.20) • [] LEASHING. FECES CLEAN UP - All dogs must be effectively restrained by a leash not exceeding eight feet in length or kept within a.fenced yard or area. Owners of any dog or domestic animal are responsible for cleaning up the feces of the animal and disposing of same in a sanitary manner. Persons having custody of any dog or domestic animal on or about any public place shall have suitable equipment in possession for the picking up, removal and sanitary disposal of feces. (Section 64.50 A & B) [� MAXIMUM NUMBER OF ANIMALS (Dog or Cat Kind) - No owner or caretake r of any residential building shall knowingly allow more than three animals of the dog or cat kind over the age of four months to be kept in said building. This includes single and multiple dwellings. (Section 64.100) [] RABIES VACCINATION - All dogs and cats kept within the City must be vaccinated for rabies by a licensed veterinarian. Dog and cat owners must obtain a certificate to show proof of vaccination. (Section 66.10 & 66:20) [l DOGS DISTURBING THE PEACE • It is unlawful for an person to own. keep or harbor any dog which by frequent for habitual howling, yelping or barking causes serious disturbance to persons in the neighborhood. Penalty for violation of this .section 1 s 'a Court' appearance if a petition signed by three or more neighbors is received by Animal Control regarding the disturbance. (Section 64.90) FOR ADDITIONAL INFORMATION CONCERNING RESPONSIBLE PET OWNERSHIP. PLEASE CALL MINNEAPOLIS ANIMAL COMM. ' Manager. Am mai Lontroi 348 -4250 i of Minneapolis 00 -XXXX � Operations & Regulatory Services John A. Dorgquist Assistant City Coor*tator Licenses & Consumer Services August 2, 2000 Division James J. Monour Director lane Doe Clem 9*04 onzatez 1234 Address Assistant Ditoclor Minneapolis MN 350 Soulh 51h Sliest - Room IC Mirmeapolls MN 65415 -1391 Dear Ms. Doe: Oft (612) 673 -2080 Fox 6 73 -3399 The Animal Control Program of the City of Minneapolis has received Y _ complaints that your dog is creating a noise nuisance in your neighbor - ADA 673 -3508 hood, Animal Control 34B -4250 " Ru4cr- g Your neighbors have been advised of the required procedures in order for Contractor Licenses 673.3001 a criminal complaint to occur, which includes three or more neighbors Em4ronmental Health 673 -2170 signing a petition form and documenting the barking problem. The Liquor Licenses 673 -2871 petition form has been provided to the reporting party by this office. if the 1 ' ' Enlorcemenif necessary documentation is completed and returned to Animal Control, the rratfic Conuw 336 -5932 me will be referred to the City Attorney's office and may result in a Pal Licenses x 73 .2050 complaint charging you with a violation of Minneapolis Ordinance 64.90 - Space pbutninp 673.33x3 Dogs Disturbing the Peace. An informational handout which describes the reasons dogs bark and some corrective measures which can be taken has been provided for your assistance. You may also contact our office to receive a list of obedience training establishments in the Minneapolis Area. Please take action to eliminate excessive barking so that prosecution will not be necessary.. Sincerely,. Robert Marotto C Manager, Minneapolis Animal Control Enclosure lml � vnvwa.minneapolts.mn,us _ Affirmative Action Employer - Aocycled paper 30% post consumer wasto , 4.90 Dogs disturbing the peace. It shall be unlawful for any person to own, keep, have in his possession, or harbor any dog which by frequent and habitual howling, yelping, S barking, or otherwise, shall produce noise that unreasonably disturbs the -peace, quiet, or repose of a person or persons of ordinary sensibility, provided that the provisions of this section shall not apply to duly authorized hospitals or clinics conducted for the treatment of small animals. 64.100.Maxximum number of animals of the dog or cat l4nd.. (a) No owner or caretaker of any residential building shall knowingly allow more than three (3) animals of the dog or cat kind over the age of four (4) months to he kept, harbored or maintained within any residential building or on any residential lot or parcel of property in the city without a permit. (b) The number of dogs or cats permitted in subsection (a) may be increased by obtaining a permit issued by the commissioner of health. Such permit shall specify any restrictions, limitations, conditions, or prohibitions which the commissioner of health deems reasonably necessary to protect any person or neighbor from unsanitary conditions, unreason able noise or odors, or annoyaanioe, °or to protw the pul lie health or safety. Such a permit may be modified from time to time or revoked by the commissioner for failure to conform to such restrictions, limitations, conditions or prohibitions. Such modification or revocation shall be effective from and after ten (10) days following the mailing of written notice thereof by certified mail to the person or person keeping or maintaining such dogs or cats. (c) All permits issued hereunder shall expire on February first next after its issuance unless sooner revoked. The annual fee for such permit shall be twenty dollars ($20.00) which shall be paid at the time of the making of the application therefor. Animal control shall inspect the premises every other year prior to issuing a renewal of the permit. � _ •City of Minneapolis Operations & Regulatory Services Jutm A. BerpWlsl Assistant City Cooidmalot Lisa nses & Consumer Services Division _ - Jamcu J. Monar Dkeelor ' Clete Sdimh•Gomeler Abaistanl Uiregor 350 South 5b Street • Floom 1C Mllnneapods MN 55915.1991 T)IREC'rIONS-FOR CHARGING A PARTY WITH 'VIOI -ATJNG WLS• Office 1612) Sri -moo ORD. 64.90 DOG WSTURUTNG THE PEACE Fax 673.3399 AAA r>73.3606 1, Before a complaint will be issued, the dog, owner or possessor roust Animal Gw trol 011.4250 be identified by name, address, and if possible., dale of bu't.b. aMWM Callrador 110" IPa 673.3001 FmkotanentalNealth 673.2170 2• Logs must be kept for at least five days detailing the dates, tinleb, liquor licenses 6732971 and duration of the offending barking, by al least three (3) different ago hnloroemmw households (different addresses or housing units). This will be 110flic Control 33x,-5932 needed if the charge is prosecuted. Pet Monts 673.2050 Space Planning 673.3393 3. The complaining parties must sign the enclosed petition and be willing to testify in court m to the details that were recorded in lbe logs. 4. Once the petition and logs have been completed, send them to: Minneapolis Animal Control 506 Eleventh Avenue Noith Minneapolis, MN. "15411 -4322 5. If the party responsible for the dog is not known by name, Animal Control will be requested to have an Atiiunal Control Officer attempt to get this utfornaatiom W%v.ci.minneapolis.mn.us - Alliinnel ve Adios Employer Reoyded paper 30% post consumer weste Municipal Code Corporation MCCListofCodes Next Page . Previous Page : Conceal Hierarchy Contents SAX .. �Q tames W CODE OF ORDINANCES Title 4 ANIMAI„S AND FOWL* CHAPTER 64, DOGS AND CATS* 64.90. Dogs disturbing the peace. It shall be unlawful for any person to own, keep, have in possessio 64.90. Dogs disturbing the peace. It shall be unlawful for an r � o g g p y person to own, kee p, have in possession, or harbor any dog which by frequent and habitual howling, yelping, barking, or otherwise, produce noise that unreasonably disturbs the peace, quiet, or repose of a person or persons of ordinary sensibility, provided that the provisions of this section shall not apply to duly authorized hospitals or clinics conducted for the treatment of small animals. (Code 1960, As Amend., § 810.090; Ord. of 6- 13 -75, § 2; 86 -Or -114, § 1, 5- 23-86; Pet. No. 248858, § 2, 3- 31 -89; 91 -Or -034, § 1, 2- 22 -91) Next Dc;i Previous Docume Pa= Table of Contents Query Options: Search Entire Docu Concea Hierarchy Hide List Qf Doc,njpPtjt Heading$ at Ton of PaLye Conceal Header & Control at Ton of Page Return to Beginning o f Text at Ton of Page MCC List of Codes 1 of 1 08(021200012:07 PM City of Minnetonka (952) 939 -8200 Contact: Minnetonka Police, Community Service Officer, DeAnn Bloom Summary of conversation regarding barking dog ordinance: • Minnetonka Community Service Officers respond to barking dog problems during the daytime hours and Police Officers are dispatched in the evening. • If all Community Service Officers are busy a letter is sent to the owners stating that the City received a complaint. • In response to the first complaint an officer is sent to the address in question. An officer will sit at the house and listen to the dog for 10 minutes. If there is less than one minute of silence a warning notice is left for the owners. • If a second complaint is filed a citation is issued to the owners. ® Nfinrietonka ao�.,1 have the right to impound the dog. Although, in the past the officers- have not done so. DeeAnn Bloom (Community Service Officer) said Minnetonka has started to impound the animals. ■ A dog is more likely to be impounded at night if the owner is not home because the owner is considered to be disturbing the peace. Enclosure: Faxed copy of Minnetonka. Ordinance regarding public safety 925.085 Printed Copy of Minnetonka Ordinance found on the City's web address Public Safety 925.085 . further infection. An effective program for the control of insects, ecto parasites and other pests must be established and maintained. 925.085. Prohibitions. 1. An owner must not cause or permit his/her dog to. M at large within the city limits, including within a public park, except as otherwise allowed by this code. 2. An owner must not cause or permit his/her dog to be on a public beach or school grounds, even if under restraint, except for trained "seeing eye" dogs. 3. A person must not abandon an animal within the city. 4. A person must not keep o-yn, harbor or gtherwise possess a public. nuisance animal. - 5. No person shall own, keep, or have in his/her possession an animal which unreasonably causes annoyance or disturbance to another person by frequent howling, yelping, barking, or other kinds of noise. This paragraph may not be enforced unless the noise has continued for a 10- minute,period and unless the person has been given notice of the level of noise deemed to be a violation and an opportunity to comply. • 6. A person must not permit an animal under his/her care, - custody or control to damage another person's lawn, garden or other property. 7. A person must not injure, harrass, or interfere with a police canine in the lawful Performance of its duties, or attempt, permit or cause the same. 8. An owner of an animal must not fail to restrain the animal from inflicting or au,,. + L, g to inflict bodily injury on a person at any place or on a domestic animal off the owner's property, except in the circumrtances specified in section 925.005(9), paragraphs d, e, and f. 9. A person, except police officers in the lawful performance of their duties using a police canine, must not cause or encourage an animal to engage in unprovoked attacks upon human beings or domestic animals. 10. A person must not own, possess, harbor, or train an animal for the purpose of fighting with other animals. k Minnetonka City Code 9 -29 Tf1T01 . 0 A13 traffic on local residential streets; 3) shall not have any exterior display except plants, unless approved by the city council; 4) shall screen exterior storage and materials from view from adjacent properties or public streets; 5) shall provide at least 10 parking spaces plus one space for each 90 square feet of floor area in the principal building; 6) shall only be permitted where it is demonstrated that the nursery will not have an undue adverse impact on adjacent properties and where there will not be a substantial alteration of the neighborhood character; and 7) shall be subject to site and building plan review pursuant to section 300.27 of this ordinance. " = u) Commercial dog and/or cat kennels: 1) shall have a minimum lot size of two acres; 2) shall be located next to 'a collector or arterial street, as identified in the comprehensive plan, or otherwise located so that access to the site will not conduct significant traffic on local residential streets; 3) shall screen exterior storage, including refuse, from view from adjacent properties or public streets; 4) shall not include the use of a crematory; 5) shall screen parking areas for patrons from adjacent properties; 6) a mmnnurri setbazk-of i 00 fe°4. shall be maintained be`. een the kennels and all - property lines; a 2 of 2 08/07/2000 4:51 PM Minnetonka Code of Ordinances CHAPTER 3: ZONING REGULATIONS\SECTION 300.16. CONDITIONAL USE PERMIT STANDARDS FOR RESIDEN' 7) shall keep all * dogs * and cats within an enclosed building at all times, except for supervised walks; 8) shall not cause annoyance or disturbance to another person by frequent howling, yelping, barking, or other kinds of noise. This paragraph shy only apply when the noise has continued for a 10- minute period. This requirement shall apply to the cumulative barking from the kennel, including one or several * dogs * ; 9) shall provide at least one parking space per employee and one parking space for each ten kennel cages; 10) shall maintain a valid city kennel license and shall comply with all applicable city and state building, health and maintenance standards; 11) shall be subject to site and building plan review pursuant to section 300.27 of this ordinance; and 1:2) shall be subject to a-- reasonable the total number of animals or the sae of-' the facilities. This will be determined by the city based on the size of the property, the uses of adjoining properties, the existence of buffering and other appropriate factors. SECTION 300.17. B -1 OFFICE BUSINESS DISTRICT. 1. Purpose. The purpose of the B -1 district is to rovide a district for office and accessory service uses but P rY which excludes general retail and service uses. Retail sales shall be prohibited except for uses established primarily in support of the principal office use. Exterior display of merchandise shall be prohibited. The B -1 district is intended for those areas of the city identified for office development by the comprehensive plan or for transitional areas between residential and more intense uses. 2. Permitted Uses. Within the B -1 district no structure or land shall be used except for administrative, executive, professional or other offices. 3. Accessory Uses. Within the B -1 district the following shall be permitted provided they are subordinate to and associated with a permitted use: a) overhead utility poles and lines for a distribution line, receive -only satellite dish antennas and other antenna devices up to a maximum height of 60 feet as measured from the ground upon which it is located subject � ct to the requirements found in section 300.28, subd. 13; except that utility poles and lines for a distribution line may be taller than 60 feet, but not taller than 80 feet, ' when needed to cross a major roadway uch as a freeway; Y; . b evergreen material terial sales if in compliance with the standards specified in section p p on 300.15, 1 of 2 08/03/2000 9:14 AM City of New Hope (763) 531 -5100 Contact: New Hope Police Department Summary of conversation regarding barking dog ordinance: ' When New Hope Police Dispatch receive a barking dog complaint an officer on duty is sent to the address ► An officer will park at the address for ten minutes. The officer is looking to hear continuous barking for five minutes in the day time and three minutes in the evening for a violation to have occurred. ► In response to the first complaint an officer can issue a verbal or written warning. The officer can also issue a citation. ► In response to a second complaint an officer almgst #lwa.3s issues a citation. Enclosure: Faxed copy of New Hope Ordinance Nuisances and Running at Large, 7.023 b • I 7.027 (7.) ,Lost, gs_ In case a dog tag is lost or destroyed, a duplicase or new tag will be issued by the Ck* upon proof that such dog was licensed, ad the payment of the fee prescribed in Chapter 14. .......... ............................... (Ord 72 -9. 81 -5) 7.023 Nuisanoes and Running at Large. 7.023 (1) Nuisance Animals. Animals shall be main abed and handled in such a manner as to prevent their becoming a nuisance or a thin to hetlth and safety. 7.023(2) Ae aonsIMM of Qwners_ Loose Animals. No owner or keeper of animals shall permit such animal to run at large within the limits of to City other than on premises owned or rented by the owner, or with the permission of the owner, in accordance with the provisions regarding Confinement and Control, below. 7.023(3) itv of G.).ests ,H Animals No person who is a guest of a resident in the City shall permit his animal to run at large, other than on the r �;....;,�,,,, owned or occupied by his host, or with the of the owner, in acwrdance with the provisions regarding Confinement aAd Conte, tdow. ))Eel �ko P.f 7.023 jgoisv Animals. No owner of an animal shall permit barking, howling or other noises that disturb the peace and quiet of the neighborhood. 7.023(5) AAjMM Wastm. No owner of an animal shallpermit the deposit of animal excrement on public prgpaty or the property of others, nor to accim elate on his own or rented property. as otherwise provided herein. The public streets and the adjacent boulevards are public property and within the scope of this subsection and any deposit of • eat by animals. even if accidental, shall. be the responsibility of the owner or caretaker of the animal to immediately remove and deposit in the public sanitary sewer system. The public storm sewer system bang specifically mentioned as a prohibited deposimy of such ea=emeat. ............................... (Ord. 72-9. 73 -20. - 76 -12. 76-24) 7.00-3 (6) Permanent Outdow Animal Shelter. No animal owner shall permanently maintain or keep any animal outside in any keund or shelter that does not comply with the bedding and shelter regmnmcnts of Section 7.047(4) of this Code. Any property owner ma+ataining a permanent outdoor shelter or kennel for household pets shall also be subject to the other provisions of Section 7.047 of this Code. ......6. ... ............................... (Ord. 95-N) 7.024 Imaoundinq. 7-024(j) " RIM Itaooumded, it shall be the duty of the poundrnaster, Animal Warder Services. and every police officer to apprehend any dog found unlicensed, or any animal running at large, comrary m the provisions of this sue, and to impound such animal at the City or other suitable place. 7.024(2) Dangerous. Fierce os Vicious A ntmeis . If any dangerous. fierce. or vicious animal found at large in the City cannot be safely taken and impounded, such animal may be slain by the animal warden or any police officer, or impounded until a licensed ve "hwim shall certify that the animal is not rabid. 7.024(3) Dangerous Proaensities of Biting Animals. Any animal which has bitten a person within 60 days preceding impoundu t or other disposition hereunder shall for the 7-2 072684 City Council Agenda Item No. 8a CITY OF BROOKLYN CENTER Notice is hereby given that a public hearing will be held on the 13th day of November, 2000, at 7 p.m. or as soon thereafter as the matter may be heard at the City Hall, 6301 Shingle Creek Parkway, to consider An Ordinance Amending Chapter 23 of the City Ordinances Relating to Amusement Devices. Auxiliary aids for persons with disabilities are available upon request at least 96 hours in advance. Please contact the City Clerk at 763 -569 -3300 to make arrangements. ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 23 OF THE CITY ORDINANCES RELATING TO AMUSEMENT DEVICES THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 1. Chapter 23 of the City Ordinances of the City of Brooklyn Center is hereby amended as follows: AMUSEMENT DEVICES • Section 23 -2101. LICENSE REQUIRED. B. Na J, t druilloo or de"viees Genter tmiess stteh -vendor shall have first proettred a lieettse as hereinftfter Section 23 -2102. DEFINITIONS. B. "Vendor" A persert, firm, p&rtnership or .iEh 3v ns 3n3 3r more antitsement 1 a _ _ a �*7��, 'lYti17 E+w1VVJ � e�erator, or to the operator 111an,,— zz o ..th ze u; diee3 z/n his Ater premise3 u, ' 111Y3GIIlVl Y 1 U/ Section 23 -2103. APPLICATION FOR LICENSE. B. ;1 d3Z'3 Licc The applieation fortryeft& l icvnsz� shall &cntain t1te f311v', . 4.— N&nic. r<nd a4dress -&f vCr d3:. 2. Lee cz: 133atiom wiYCrc &mu3cnlcnr�cc3 ` be u . • ORDINANCE NO. • 3. P tr , d emeana __ e kmy �,Gnviv , , l vio 4. If the in te r est of the _ n be `'" t of a corporation - or bu3im,33 entity, t1te nmes of my persons having a five (55;) or more irtteres said - btts333es3 ;,ntit 3h ii L list Section 23 -2104. LICENSE FEE. B. At the time of application for an operator's licens,, 6r v;,ndo:'s liven .-c the _ . applicant shall pay, in full an investigation fee as set forth by City Council resolution. If at any time an additional investigation is required because of a change of ownership or control of a corporation or partnership previously licensed, the licensee shall pay in full an additional investigation fee as set forth by City Council resolution. Investigation fees shall not be refunded. Section 23 -2115. AMUSEMENT DEVICES - RESTRICTIONS AND LICENSE • REVOCATION. D. Every operato a nd wndmr, in making application for a license hereunder, acknowledges that the license is a personal privilege and does not constitute property, and is not transferable. E. Any violation of this ordinance, or any failure to comply with any provisions of this ordinance, or any failure to comply with any conditional restriction of any special use permit issued with respect to the licensed premise, is hereby deemed to be adequate grounds for revocation of the license for all amusement devices on the licensed premise, or in :I amusement deviees ava to lktn3, G premises within the City 9 Braok4ynGeriteP. Section 2. This ordinance shall be effective after adoption and thirty days following its legal publication. Adopted this day of , 2000. • ORDINANCE NO. Mayor ATTEST: City Clerk Date of Publication Effective Date (Strikeout indicates matter to be deleted, underline indicates new matter.) • • 470 Pillsbury Center K ennedy - 200 South Sixth Street • Minneapolis MN 55402 Grawven (612) 337 -9300 telephone (612) 337 -9310 fax H A R T E R E D http: / /www.kennedy- graven.com CHARLES L. LEFEVERE Attorney at Law Direct Dial (612) 337 -9215 email: clefevere @kennedy- graven.com CONFIDENTIAL — ATTORNEY /CLIENT COMMUNICATION August 30, 2000 Mr. Michael McCauley City Manager City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 -2199 RE: Amusement Device Licensees Dear Mike: As you will recall, prior to this spring, the City charged a fee for a pool table license of $35.00 per pool table. The City was sued by Mendota Valley Amusement, Inc., which challenged the City's licensing fee, alleging it was a violation of Minnesota Statutes, §449.15 which restricted fees which the City may charge on amusement devices. (A copy of my letter to the City Council relating to that suit is attached.) The City agreed to reduce the license fee to $15.00 per location and $15.00 per amusement device and the case was settled. Recently another aspect of the City's fees for amusement devices has been challenged. The City charges $150.00 for a vendor's license under City Code §23 -2101. This fee has been challenged by two •;e 4ors. one is. f ere Winste.rl, who is a BInn ;�?ingtDn City Council member, represented by attorney Tom Lehman, (the same attorney who sued the City over pool table fees.) Mr. Winsted has paid his fees and is currently licensed. The other party challenging the fees is Mendota Valley, which is the party that challenged the pool table license fee. Mendota Valley has paid the fees of $15.00 per location and $15.00 per machine, but has refused to pay the vendor's license fee, and is currently operating without a license. The basis for the challenge is the argument that charging a fee for vendors violates Minnesota Statutes §449.15 which provides "A ... city may impose by ordinance a license fee on amusement machines of no more than the demonstrated and verifiable actual cost of issuing the license or $15 per location plus $15 per machine." CLL- 185421 vl 1311291 -4 Mr. Michael McCauley August 30, 2000 Page 2 of 3 A city will have to decide whether to proceed to enforce its ordinance requiring a vendor's license against Mendota Valley. Since no law suit has been brought by any party challenging the license fee, the City's best course to pursue if it wishes to attempt to continue to collect the fee would be to bring a criminal prosecution against Mendota Valley for operating as a vendor without a license. The prosecutor should be consulted about this course of action. However, I would anticipate that the company would attempt to defend the action on the ground that they did all that was required for a license except to pay the fee, and that the fee charged is unlawful under Minnesota Statutes, §449.15. I asFlime that the City would have several responses to this claim. The first is that it is not a defense to a criminal action that a fee is too high. If the vendor felt that the fee was inappropriate, the fee should have been challenged by civil action, as Mendota Valley did in the case of the pool table license fee. This argument might avoid having to defend the fee in the criminal prosecution. However, a civil challenge to the ordinance could still be brought by Mendota Valley, or any other vendor. ✓ The City would also argue that Minnesota Statutes, §449.15 limits the amount that can be charged to license amusement devices but does not limit the amount that can be charged for vendors' licenses. The vendor would probably argue that the licensing of a vendor, and charging a $150.00 fee, is a subterfuge to avoid the limitations of §449.15. The vendor could point out that the City does not license other kinds of vendors nor are there other cities which license amusement device vendors. These facts would tend to call the City's practice of licensing vendors into question. Finally, the city could argue that Mendota Valley challenged the licensing ordinance and that the City settled the case, and that therefore Mendota Valley may not now bring up new arguments. However, even if the City prevailed on this argument, the ordinance could be challenged by any other vendor. In addition to a challenge based on the statute, the City may at some point be faced with an additional basis for challenging the licensing fee. With very few exceptions, a City cannot use a licensing fee as a revenue measure. Such fees may be used to recover a reasonable approximation of the administrative costs associated with the permitting process. However, they cannot be set at a level substantially in excess of the costs to the City related to permit administration so that they become an additional source of revenue for the City. At the current time, fees recovered for amusement devices based on $15 per location and $15 per machine generate approximately $1440 in revenues. Based on discussions with the City Clerk and Police Chief, it would seem that this amount is more than sufficient to. cover the cost of • permit administration, including the licensing of vendors. CLL- 185421vl BR291 -4 Mr. Michael McCauley August 30, 2000 Page 3 of 3 If vendor licenses are reviewed independently, the amount recovered is probably well in excess of actual costs. Chief Downer reported that a typical background investigation, if one is done, for a license of this kind, would be 15 to 30 minutes of clerical time. Furthermore, this is only done at the time of the initial application and not for renewals. Therefore, the costs of licensing would be well below the annual fee of $150 charged for such licenses. There are currently seven vendor licenses in the City. Therefore, at $150 per license, the City recovers $1050.00 in license fees. It is possible that Mendota Valley, or another vendor, could challenge the fee in District Court, and the iity would be forced to defend its fee structure. - ibis could occur at any time. In such a suit, th- fee we ; -l.ld be difficult to defend given the low actual costs of administering the licensing process for vendors. If all vendors operating in the City were currently licensed, the City could wait for a law suit challenging the fee. However, Mendota Valley has forced the issue by refusing to pay the fee. Therefore, there is currently one vendor operating in the City without a license. • It seems likely that prosecuting Mendota Valley for operating without a license would prompt a legal challenge to the ordinance. Therefore, before the City begins to incur legal expenses, either for criminal prosecution or for defense of a civil suit, the Council may which to consider whether it wishes to eliminate the vendors license, or the fee for a vendors license. In this regard, it might be helpful to seek input from the police department about whether any significant police concerns are addressed by a process which licenses vendors of amusement devices. Please let me know if you have any further questions. Very truly yours, Charles L. LeFevere CLL:mlb cc: Sharon Knutson, City Clerk Joel Downer, Chief of Police Bill Clelland, City Prosecutor • CLL- 185421v1 BR291-4 CARSON, GLELLAND Sc SGHREDER ATTORNEYS AT LAW PROFESSIONAL LIMITED LIABILITY PARTNERSHIP JEFFREY A. CARSON 6300 SHINGLE CREEK PARKWAY, SUITE 305 TELEPHONE WILLIAM G. CLELLAND (763) 561 -2800 ELLEN M. SCHREDER MINNEAPOLIS, MINNESOTA 55430-2 190 FAX DAVID K. ROSS 1 September 2000 (763) 561 -1943 ANNA KRAUSE CRABB Mr. Michael J. McCauley City Manager City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 -2199 RE: Amusement License Fees Dear Mike: _ I have recently read Charlie LeFevere's letters dated 23 February and 30 August 2000, and I will speak to the issue of criminal prosecution which he has raised. Given the limitation on the fee under Minnesota Statute §449.15, it is my initial impression that criminal prosecution for failing to tender fees above the fees set by statute would not be successful. It is true, I think, as a general proposition, that a dispute as to one's entitlement to a license is not a defense to operation of a business without that license, but in this case, the qualification for the license is probably nothing more than the tender of the fee and as I understand it, this vendor has tendered the statutory fee. The defense would be that they have met all of the prerequisites for issuance of a license, and that the additional sums demanded by the City are invalid and, therefore, could not be the basis for withholding the license. This analysis, by the way, assumes that they made application for the license, they met all other criteria and tendered the statutory fees and simply did not pay the additional fee. Criminal statutes are penal and, therefore, are strictly construed and - even though the issue is whether or not they had a license, I am sure the court would allow them to broaden the issue as to whether or not- the City should have given them a license given their performance. In light of these facts to which I have just been introduced, I doubt whether a court and certainly a jury, would be very sympathetic to the State's position. I could easily foresee that a court would entertain dismissal by finding, "in effect," they had a license or on their own initiative, did all that was required for a license, but failing dismissal at that stage, I really do not see a jury of six persons agreeing unanimously, beyond a reasonable doubt, that the licensee is guilty under these facts. Sincerely, CARSON, CLELLAND & SCHREDER • w 1 Willia /. Clellan WGC /ara cc: Charles L. LeFevere 470 Pillsbury Center 200 South Sixth Street v Minneapolis MN 55402 (612) 337 -9300 telephone Gr aven (612) 337 -9310 fax C H A R T E R E D http://www.kennedy-gmven.com CHARLES L. LEFEVERE Attomey at Law Direct Dial (612) 337 -9215 email: clefevere@kennedy- graven.com February 23, 2000 Mr Micbael McCqulPtr City Manager City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 -2199 RE: Mendota Valley Amusement, Inc. v. City of Brooklyn Center • Dear Mike: As you know, the City has * been sued by Mendota Valley Amusement, Inc. This is a civil action which the League of Minnesota Cities Insurance Trust has declined to defend. Therefore, all costs associated with the litigation will be borne by the City. The suit is a challenge to the license fees charged by the City for pool and billiard tables. The fee currently charged under City resolution is $35 per pool table. Minnesota Statutes, Section 449.15 was recently amended to provide that fees charged on "amusement machines" could be no more than "the demonstrated and verifiable actual cost of issuing the license or $15 per location plus $15 per machine." In response to this statutory change, the City recently changed its fees for amusemwent niat hii1rs to 9 I 5. However, the fec v; yDCi Fables w ; left at $35. TE may have been an oversight or it may have been based on a determination that a pool table was not an amusement machine as referred to in the statute. In any case, Mendota Valley Amusements has taken the position that the statutory change also refers to pool tables, or put another way, that pool tables are amusement machines within the meaning of the statute, and has sued the City to compel the City to change the license fees to $15 per table. The outcome of this case will probably depend on the court's interpretation of the term . "amusement devices ". I have not taken the steps to attempt to determine from the records of the legislature whether there is any information about the legislative intent in enacting that change to CLL- 176631vl BR291 -196 Mr. Michael McCauley February 23, 2000 Page 2 of 2 the law. Before proceeding further in the defense of this case, the City should consider whether it is financially responsible to do so. According to Sharon Knutson, there are currently a total of five pool tables licensed in the City of Brooklyn Center, three at the Brooklyn Center Community Center and two at Chi - Chi's. If the City recovers $35 for each of the five pool tables, its annual revenues will be $175. If the fee is reduced to $15 per table for five tables, the City will recover $75 in annual license fees. Therefore, the difference between the license fees under the current fee resolution and the license fees requested by plaintiff amount to $100 per year. Even if the City is successful in the defense of this case, it will take many years before the higher revenues from pool table licenses will be sufficient to pay the City's legal costs in the lawsuit. Therefore, I would recommend that the City Council consider whether it is willing to change the license fee for pool tables to $15. I have asked the plaintiffs attorney whether the plaintiff would be willing to dismiss the lawsuit if the City were willing to reduce its license fees, and have been advised that the plaintiff is willing to do so. Copies of this correspondence is attached. If the City is willing to reduce the license fees, the lawsuit would be dismissed without any costs or disbursements or plaintiff's attorneys fees. Please let me know if you have any questions about this matter. Very truly yours, Charles L. LeFevere CLL:lh Enclosures • CLL- 176631v1 BR291 -196 • City Council Agenda Item No. 8b I Office of the City Clerk City o f Brooklyn Center A great place to start. A great place to stay. • MEMORANDUM TO: Michael J. McCauley, City Manager ± FROM: Sharon Knutson, City Clerk DATE: November 9, 2000 SUBJECT: Resolution Authorizing Issuance of a Currency Exchange License to Community Money Centers, Inc. dba Money Centers, 6219 Brooklyn Boulevard, Brooklyn Center The Minnesota Department of Commerce has received an application from Community Money Centers, Inc. dba Money Centers to renew its currency exchange license to operate at 6219 Brooklyn Boulevard, Brooklyn Center, and has forwarded a copy of the complete application to the City of Brooklyn Center for review. The City Council approved issuance of the initial application at its meeting on July 26, 1999. Minnesota Statute §53A.04 requires the Minnesota Department of Commerce to submit any application for • licensure as a currency exchange to the governing body of the municipality in which the currency exchange proposes to conduct business. The Statute requires the governing municipality to render a decision regarding issuance or denial of the license within 60 days; it also requires the governing municipality to publish notice of intent to consider the license (published in the Brooklyn Center Sun -Post October 25, 2000). Community Money Centers, Inc. dba Money Centers has submitted to the Minnesota Department of Commerce the appropriate fee, current fee schedule used for cashing checks, surety bond in the amount of $10,000, and background investigation by the Bureau of Criminal Apprehension. Attached is a copy of a memorandum from Police Chief Joel Downer regarding police activity at this location since it opened last July. s 6301 Shingle Creek Pkwy, Brooklyn Center, MN 55430 -2199 • City Hall & TDD Number (612) 569 -3300 Recreation and Community Center Phone & TDD Number (612) 569 -3400 • FAX (612) 569 -3494 An Affirmative Action 1 Equal Opportunities Employer Member introduced the following resolution and moved • its adoption: RESOLUTION NO. RESOLUTION AUTHORIZING ISSUANCE OF A CURRENCY EXCHANGE LICENSE TO COMMUNITY MONEY CENTERS, INC. DBA MONEY CENTERS, 6219 BROOKLYN BOULEVARD, BROOKLYN CENTER WHEREAS, Minnesota Statute 53A.04 requires the Minnesota Department of Commerce to submit any application for licensure as a currency exchange to the governing body of the municipality in which the currency exchange proposes to conduct business; and WHEREAS, the Minnesota Department of Commerce has received an application from Community Money Centers, Inc. dba Money Centers, 6219 Brooklyn Boulevard, Brooklyn Center; and WHEREAS, the City of Brooklyn Center allows for such conduct on premises within the City of Brooklyn Center. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center that the issuance of a currency exchange license to Community Money Centers, • Inc. dba Money Centers to operate at 6219 Brooklyn Boulevard is hereby approved. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. • City of Brooklyn Center (Official Publication) NOTICE OF INTENT TO CONSIDER A CURRENCY EXCHANGE LICENSE Notice is hereby given that the City Council of the City of Brooklyn Center will consider the renewal application for a currency exchange license from Community Money Centers, Inc. dba Money Centers, to operate at 6219 Brooklyn Boulevard, Brooklyn Center, Minnesota. This consideration will be given at the November 13, 2000, City Council meeting at 7 p.m. or as soon thereafter as the matter may be heard. The meeting will be held in the Council Chambers of the Brooklyn Center City Hall, 6301 Shingle Creek Parkway, Brooklyn Center, Minnesota. Sharon Knutson City Clerk • �� oOKLYN Cpr BROOKLYN CENTER POLICE DEPARTMENT POLICE MEMORANDUM TO: Michael McCauley, City Manager FROM: Joel Downer, Chief of Police DATE: October 17, 2000 SUBJECT: Money Center, 6219 Brooklyn Boulevard The Brooklyn Center Police Department has responded to six calls for service to the Money Center at 6219 Brooklyn Boulevard since July of 1999. Four of these calls have been alarms (all have been false) and two have been forgeries. Both forgery cases remain under investigation at • this time. JD /jm moneydr.mem MINNESOTA DEPARTMENT OF COMMERCE • - __ = Financial Examinations Division October 2, 2000 Sharon Knutson City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 -2199 CERTIFIED MAIL RE: Community Money Centers, Inc. dba Money Centers - License #20202409 Currency Exchange License Renewal for 2001 Dear Ms. Knutson: The above -named currency exchange licensee has made application to renew its Currency Exchange License to operate at: 6219 Brooklyn Blvd. Brooklyn Center, MN 55429 Pursuant to Minnesota Statute 53A.04, we are forwarding a copy of the complete renewal application to the City of Brooklyn Center in care of your office for you to review. • Minnesota Statutes Chapter 53A.04 requires the Department of Commerce to submit any P q p application for licensure as a currency exchange to the governing body of the muni- cipality in which the currency exchange conducts business. The law further requires the governing body of the municipality to render a decision regarding the renewal of the license within 60 days. Your cooperation in forwarding this information to the proper unit within your organization is appreciated. Your reply must be received within 60 days of receipt of this letter. If you have any questions, please contact me at the telephone number listed below. Very truly your , I k in. Brown Financial Examinations Division (651) 282 -9855 Enclosure • 133 East Seventh Street, St. Paul, MN 55101 -2333 Telephone (651) 296 -2135 • Fax (651) 296 -8591 • TTY/TDD (651) 296 -2860 e -mail: financial @state.mn.us Web Site: www.commerce.state.mn.us An Equal Opportunity Employer STATE OF MINNESOTA OFFICE USE ONLY CASHIE_USE ONLY DEPARTMENT OF COMMERCE Deputy k 0 MOO DIVISION OF FINANCIAL EXAMINATIONS Asst. � ti o 8co � 133 EAST 7TH STREET - Chief 113 A j ST. PAUL, MINNESOTA 55101 Review Q�Q /1 (651) 282 -9855 Data Entry e$ Cun-ency Exclanp I License Number Processing Date Surety Bond Number 9q "7 9 CURRENCY EXCHANGE surance Company NAIC Number L- LICENSE APPLICATION I rr,, FvL The data, which you furnish on this form, will be used by the Department of Commerce to assess your qualifications for a license. Disclosure of your social security number is voluntary. You are not legally required to provide this data; however, if you do not provide your social security number, the Department of Commerce may be unable to grant a license. The Department may use social security numbers for revenue recapture as authorized by Minnesota Statutes. Chapter 270A and for identification purposes. After issuance of a license, all information contained in this application, except your social security number, is public pursuant to Minnesota Statutes, Chapter 13. A. TYPE OF LICENSE (check one) ❑ NEW ® RENEWAL ❑ AMENDED LICENSE APPLICANT INFORMATION AME OF CURRENCY EXCHANGE Money Centers NAME OF CORPORATION OR PARTNERSHIP Community Money Centers, Inc. BUSINESS ADDRESS (No Post Office Boxes) 6219 Brooklyn Blvd. CITY I MN STATE 21P CODE COUNTY Brooklyn Center 1 55479 H ennenin NAME OF INDIVIDUAL MANAGING THIS LOCATION STATE TAX ID NUMBER Richard Krietzman- Blazevic 1718779 TELEPHONE NUMBER FAX NUMBER E -MAIL ADDRESS (763 )535 -6872 1 (76.3 ) 531 - 6g30 carvdzeller @email.msn.com Check one: ❑ SOLE PROPRIETORSHIP ❑ ASSOCIATION ❑ - PARTNERSHIP ❑ - L-D IITED LIABILITY PARTNERSHIP ® CORPORATION ❑ LIMITED LIABILITY COMPANY April 1992 Minneapolis Hennepin MN Date of Incorporation or Organization Place of Incorporation County State 1 • MN/DOC CURRENCY EXCHANGE APPL 7/99 1 8/3/1999 C. Additional licensed currency exchange locations operated by the applicant (use separate sheet if additional space is needed). 1532 University Ave., Suite #100 Street Address (P.O. Boxes are not acceptable) St. Paul MN 55104 Ramsey City State Zip Code County 6525 Nicollet Ave. Street Address (P.O. Boxes are not acceptable) Richfield MN 55423 Hennepin City State Zip Code County 2600 Nicollet Ave. _ Street Address (P.O. Boxes are not acceptable) Minneapolis MN 55408 Hennepin City State Zip Code County 8132 Highway 7 o r et Address (P.O. Boxes are not acceptable) St. Louis Park MN 55429 Hennepin City State Zip Code County D. Please provide the names and complete business addresses of owners, partners, officers, stockholders (owning 10% or more of the corporate stock), and employees with authority to exercise management or policy control over the company. Full Name Official Percent Residence Social Security girth Date Title Ownership Address Number 6145 Arctic czr � , _n Gel or l nnz -RAia MKI r C ; 4 - ?6_� h jt� f 1�35Q Richard Krietzman -. 5520 24th Ave. S. Rl o�cii n n Mr, mu 5 LO - 7 i I I I I I I I I I 2 E. ALL applicants must answer the following questions. If any questions are answered "YES," you MUST attach a detailed written explanation and any legal documentation, if applicable. Have you, any of the owners, partners, officers, managers, directors, or shareholders owning more than 10(70 of the corporate stock: YES NO 0 1. Held a currency exchange license in any other state other than Minnesota? If YES, the new license application must include a verification of license certified by the state(s); all other applicants must verify that the certification(s) previously submitted is accurate. 0 O 2. Been the subject of any inquiry or investigation by any division of the Minnesota Department of Commerce? 0 ® 3. Had any occupational license censured, suspended, revoked, cancelled; terminated or been the subject of any type of administrative action in any state including Minnesota? 0 0 4. Have you ever been charged with, or convicted of, or been indicted for, or entered a plea to, any criminal offen= . (felony, gross misdemeanor or misdemeanor), other than traffic violations, in any State or Federal Court? 0 1 5. Been a defendant in any lawsuit involving claims of fraud, misrepresentation, conversion, mismanagement of funds or breach of contract? O 13 6. Been notified by the Commissioner of Revenue, pursuant to Minnesota Statutes, Section 270A.72, that you currently owe the State of Minnesota taxes? i O 0 7. Have any unclaimed property (unclaimed funds or property over 3 years old) to report under Minnesota Statutes, Section 345.37? 0 13 8. Filed for bankruptcy or protection from creditors or currently have outstanding unsatisfied judgment(s)? O ® 9. Been affiliated with any other currency exchange? 0 13 10. Will the applicant sell lottery tickets at the licensed location? I HEREBY CERTIFY THAT ALL INFORMATION CONTAINED IN THIS APPLICATION AND ANY ACCOMPANYING DOCUMENTS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE. - I CERTIFY THAT THIS. DOCUMENT HAS.. NOT BEEN.. ALTERED OR CHANGED IN ANY MANNER FROM THE EXIRM ADOPTED $Y PARTMENT OF COMMERCE. Signature of Owner, Partner or Corporate Officer Date 4ir D. Geller nt Name of Owner Partner, or Corporate Officer 3 ' ' CENTERS • We make it easy. Community Money Centers, Inc. Corporate Office 6525 Nicollet Avenue P.O. Box 23090 Richfield, MN 55423 Tele: 612 866.5674 August 15th, 2000 Fax: 612 866.4342 Department of Commerce _ Division of Financial Examinations 133 East 7` Street St. Paul, MN 55101 Re. Page 3, Question #2, of Currency Exchange License Application. Dear Sir or Madam, 0 1VIoney Center locations 1532 University, suite #100 Community Money Centers, Inc. d.b.a. Money Centers was one of several currency exchange businesses that paid the Department of Commerce a St. Paul, MN 55104 $1,000 fee for an investigation of delayed presentment transactions. The Tele: 612 645.3965 Department of Commerce did not take punitive action, imposed no Fax: 612 645.8090 sanctions and did not fine Community Money Centers, Inc. incerely, 6525 Nicollet Avenue Richfield, MN 55423 President Tele: 612 866.6505 Fax: 612 866.8090 i 2600 Nicollet Avenue Minneapolis, MN 55408 Tele: 612 870.2885 • Fax: 612 870.2975 2 �1, f3 k In _. STATE OF MINNESOTA DEPARTMENT OF PUBLIC SAFETY BUREAU OF CRIMINAL APPREHENSION CRIMINAL JUSTICE INFORMATION SYSTEM SECTION 1246 UNIVERSITY AVE, ST PAUL, MN 55104 - 4197 (651) 642 -0670 TTY (651) 282 -6555 Date: 2000/08/02 Name: GELLER, CARY D DOB: 1950/06/16 SEQ #: 778 This letter certifies that a search has been made of the criminal history files maintained in Minnesota by the Department of Public Safety, Bureau of Criminal Apprehension. The search was performed by Name and Date of Birth. The result of this search indicates that no record was found based on the above search criteria. This does.not preclude the possible existence of additional information located at county or city levels. If you have questions about this record please contact the telephone number above. w STATE OF MINNESOTA DEPARTMENT OF PUBLIC SAFETY BUREAU OF CRIMINAL APPREHENSION CRIMINAL JUSTICE INFORMATION SYSTEM SECTION 1246 UNIVERSITY AVE, ST PAUL, MN 55104 - 4197 (651) 642 -0670 TTY (651) 282 -6555 i Date: 2000/08/02 Name: KRIETZMAN- BLAZEVIC, RICHARD P DOB: 1950/11/23 SEQ #: 777 Y This letter certifies that a search has beeif madd *of the. criminal history files maintained in Minnesota by the Department of Public Safety, Bureau of Criminal Apprehension. The search was performed by Name and Date of Birth. The result of this search indicates that no record was found based on the above search criteria. • This does.not preclude the possible existence of additional information located at county or city levels. If you have questions about this record please contact the telephone number above. • ' ' CENTERS We make it eas Community Money Centers, Inc. Corporate Office WORK HISTORY OF MANAGEMENT 6525 Nicollet Avenue P.O. Box 23090 Richfield, MN 55423 Cary D. Geller 1992 to Present Community Money Centers, Inc. Tele: 612 866.5674 President Fax: 612 866.4342 1980 to Present MCM Properties, Fargo, ND Managing Partner 1976 to 1991 Geller's Auto & truck Parts, Inc. Geller's Main Automotive, Inc. Secretary,/ Treasurer, Principle 1974 to 1976 Galaxy Film Service, Minneapolis, MN Assistant Sales Manager Money Center locations Richard P. Krietzman 1532 University, Suite #100 1992 to Present Community Money Centers, Inc. St. Paul, MN 55104 Secretary Treasurer, Controller Tele: 612 645.3965 1983 to 1992 Radisson Hotels International, Inc. Fax: 612 645.8090 Controller, Radisson Hotel, Moscow, Russia Corporate Accounting Manager Controller, Radisson Hotel, St. Paul 1979 to 1983 CFS Continental, Inc., Minneapolis Assistant Regional Controller 6525 Nicollet Avenue 1974 to 1977 Investors Diversified Services, Minneapolis Richfield, MN 55423 Internal Auditor Tele: 612 866.6505 Fax: 612 866.8090 2600 Nicollet Avenue Minneapolis, MN 55408 Tele: 612 870.2885 • Fax: 612 870.2975 BOND NUMBER: STATE OF MINNESOTA DEPARTMENT OF COMMERCE CURRENCY EXCHANGE SURETY BOND Q OW ALL MEN BY THESE PRESENTS That Communi ty y Mone Centers Inc. a Minnesota Corporation with business office at 6219 Brooklyn Blvd., Brooklyn Center, Minnesota 55429 as PRINCIPAL and EMPIRE FIRE & MARINE INSURANCE COMPANY of Omaha, NE a corporation duly organized under the laws of the State of Nebraska, which is authorized to engage in the business of insurance in the State of Minnesota, as SURETY, are hereby held and firmly bound to the Department of Commerce of the State of Minnesota in the sum of TEN THOUSAND DOLLARS ($10,000). Principal and Surety hereby bind themselves, their representatives, successors and assigns, jointly and severally by these presents. The parties further agree that: 1. The purpose of this obligation, which is required by Minnesota Statutes, Section 53A.08 is to secure the compliance by Principal with the terms of Minnesota Statutes, Section 53A.02 to 53A.13, and any other legal obligations arising out of the Principal's conduct as a currency exchange. - 2. This bond is for the benefit of the State of Minnesota and all persons suffering damages by reason of Principal's failure to comply with Minnesota Statutes, Section 53A.02 to 53A.08 or other legal obligations arising out of Principal's conduct as a currency exchange. 3. If the Principal shall violate Minnesota Statutes, Section 53A.02 to 53A.08 or other legal obligations arising out of its conduct as a currency exchange, the Commissioner of Commerce, as • well as any person damaged as a result of such violation, shall have, in addition to all other legal remedies, a right of action on this bond in the name of injured party for loss sustained by the injured party. 4. This bond shall be effective from January 1, 2001 until December 31, 2001. Signed and Sealed this 9th day of August, 2000. By: EMPIRE FIRE & MARINE INSURANCE COMPANY, By: Richard H. Davies, o ey- p-Fa t t j By: Communitv Monev Centers. Inc. By; (Name of Currency Exchange) Cary D. Feller, President FOR DEPARTMENT USE ONLY Approved as to form and execution by Department of Commerce. • SIGNATURE DATE REV. 8/00 THE PATRICK J. THOMAS AGENCY, Minneapolis & St. Paul, Minnesota. ACKNOWLEDGMENT OF PRINCIPAL STATE OF MINNESOTA ) COUNTY OF RAMSEY ) ss. O LE PROPRIETORSHIP) The foregoing instrument was acknowledged before me this day of , by (Name of person acknowledged) NOTARY SEAL Notary Public *********************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** (PARTNERSHIP /LIMITED LIABILITY COMPANY) The foregoing instrument was acknowledged before me this day of , by , a ;partner on behalf of , (Name of acknowledging partner) (Name of partnerAimited liability company) a partnership. NOTARY SEAL Notary Public *********************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** O RPORATION) The foregoing instrument was acknowledged before me this 117 day of 4U& by Cary C. Geller, President of Community Money Centers, Inc., a Minnesota corporation, on behalf of the corporation. ■ ■ RUTH E. JOHNSON NOTARY PUBLIC - MINNESOTA z My Commission Expires Jan. 31, 2005 • � ; lam -C�G� ���'C'�'�J'�a��»+_. NOTARY SEAL Notary Public 7/ *********************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** ACKNOWLEDGMENT OF SURETY STATE OF MINNESOTA ) COUNTY OF HENNEPIN) ss. The foregoing instrument was acknowledged before me this 9th day of August, 2000, by Richard H. Davies the Attorney -in -Fact, of EMPIRE FIRE & MARINE INSURANCE COMPANY a Nebraska corporation, on behalf of the corporation. PAMELA M. DRtESCH GARY SEAL NMinnesota otary PubHC Notary Public Iy tbm WISion Eagm Jan. 31.2= - EMPIRE FIRE AND MARINE INSURANCE= COMPANY OMAHA, NEBRASKA POWER OF ATTORNEY Know All Men by These Presents: hat this Power of Attorney is not valid or in effect unless attached to the build which it aulhodzes executed, but may be detached by approving officer if desited. That EMPIRE FIRE AND MARINE INSURANCE COMPANY, a corporation duly organized under the laws of the ;;tale of Nebraska, and having its principal office in the City of Oniaha, Counly of Douglas, Slate of Nebraska, dues hereby make, constitute and appuint Richard 1.1. Davies, Bruce A. Myers, Nicholas L. Newton, Carolyn L. Davies, Malthew W. Davies and Pamela M. Driesch its true and lawful Allorney(s) - in - fact, to make, execute, sign, seal and deliver for and on its behalf as solely and as its act and deed any and all bonds and undertakings of suretyship. NOT EXCEEDING IN AMOUNT Seven Hundred and Filly Thousand aril Nt)1 100------------------------------------------------------------- - - - - -- Dullars ($_750. ) and to bind EMPIRE FIRE AND MARINE INSURANCE COMPANY thereby as fully and to the same extort as it such builds and undertakings and other writings obligatory in the nature thereof were signed by an E=xecutive Officer of LMPIRI_ FIRL AND MARINE= INSURANCE COMPANY and sealed and attested to by one other of such officers, and hereby ratifies and cunlimis all that ils said Attorneys) -in -fact may do in pursuance hereof. This power of attorney is granted under and by authority of Article III, Section 3.1 of the Uy -Laws of the LMI'IRL FIRL AND MARINE INSURANCE COMPANY and by Resolution of the Board of Directors duly adopted as follows: "All bonds, policies, undertakings or other obligations of the corporation shall be executed in the curhuiale name of the Company by Ilia Chairman of the Board, President, any Vice - President. Secretary, any Assistant Secretary, or - f'reasoler. or by such other ullicers as Ilia Board of Directors may authorize. The Chairman of the Board, President, any Vice - President. Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or Agents who shall have awhoril to issue builds, policies, or undertakings in the name of the Company. The corporate seal Is not necessary for the validity of any builds, policies, undertakings or other obligations of the corporation." It is certified that the above is a true and exact copy. In Witness Whereof, the EMPIRE FIRE AND MARINE INSURANCE COMPANY has caused these piesenls to be signed by its ('resident, and its corporate seal to be hereto affixed, duly attested by its Secretary this 19111 day of June , ZUUU Attest: EMPIRE FIRE= AND MARINE 1140"UHANC11 COMPANY 2r111- A'4�� i Secretary j,* _•. Piesidenl STATE OF NEBRASKA ) ) ss. COUNTY OF DOUGLAS) On this 19th day of June , A.D. 2000 before the personally carne John Kinsler to me known, who being by nu; duly swum, did depose and say: that he resides In the County of Douglas, Stale of Nebraska; Ural he is the Secretary of (lie CMPIRL FIRL ANU MARINE INSURANCE COMPANY. the corporation described in and which executed the above instrument that he knows the seal of said corporation; that the seal affixed to the said instrument Is such corporate seal; Ural it was so affixed by order of lire Dowd of Directors otsaid corporation and that lie signed his name thereto by like order. Signed and sealed at the City of Omaha. Dated 19th day of June , 2000 GENEfNI NOTARY•Stale o1 Neblulu , II CAROL L WHITE IAy Comm. Exp. 4M.2.2W3 c} >7.^ ��'�.✓ t 0 Nutaiy Public CERTIFICATE 1, the undersigned. Secretary of the EMPIRE FIRE AND MARINE INSURANCE COMPANY, A Nebraska Cuipuralimi DO I IERLBY CERTIFY that the foregoing and attached POWER OF ATTORNEY remains in full force and has not been iovuked; and furthcimure, that the Resolutions of the Board of Directors set forth In the Power of Attorney are now in force. Signed and sealed at the City of Ornalla. Dated the 9th day of August , 2000 . �tiG Scaelary . EM 4010 (06 -00) s • Qti:r'i�) 7 I/ ARTICLES OF INCORPORATION n / OF SGS EXPRESS, INC The undersigned, being a natural. person over ton he age. rf 18 years, for the purpose of forming a bus 302A of Minnesota Statutesa pursuant to the provisions of Chapter sloes hereby adopt the following Articles of Incorporation: Article I The name of this corporation is SGS Express, Inc. Article II The address of the registered Office of this corporation is ' 150 south 5th Street, Suite 2300, Minneapolis, Minnesota 55402. Article III that this corporation has The aggregate number of shares with a par value of authority to issle is ten thousand (10,000), O One -half Cent ($.005) per share. N • Article Iv V) w The board shall have authority to establish more than one t , class or series of shares of this corporation, and the different classes and series shall have such relative rights and preferences, with such designations, as the board may by resolution provide. ; Article V Except as may be otherwise provided by the board in a resolution establishing a class or series of the shares of this corporation, shareholders shall have no preemptive rights. Article VI There shall be no cumulative voting by shareholders for the election of directors. Article VII Any action required or permitted to be taken at a board meeting, if such action need not be approved by the shareholders, may be taken by written action signed by the number of directors that would be required to take the same action at a meeting of the beard at which all directors were present. s OZ81. - Article. VIII A director of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. The foregoing shall not be deemed to eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 3u2A.559 or 80A.23 of Minnesota Statutes, (iv) for any transaction from which the director derived any improper personal benefit, or (v) for any act or omission occurring g prior to the effective date of this Article VIII. Any repeal or modification of this paragraph by the shareholders of the corporation shall not adversely affect any right or protection of a. director of the corporation existing at the time of such repeal or modification. Article IX i The name and address of the incorporator aYe: Gail E. Peterson Suite 2300 150 South Fifth Street r Minneapolis, Minnesota 55402 IN WITNESS WHEREOF, these Articles have been executed this 30th day of April, 1992. '� ^1 4�a Ga,il E. Peterson Incorporator / STATE OF MINNESOTA DIPARTMdNt O STATe FILED APR 3 91992 aw" secretary o� Sfala 2 • i STATE OF MINNESOTA . /EPARTMENT OF STATE I hereby certify - that_this -is a true and complete copy of the decilr lent as-fihd for record in ti: ,.::�(i1( fy� 'Secrctary of Slatc By /�'�( I q 0 ARTICLES OF AMENDMENT - OF ARTICLES OF INCORPORATION OF SGS EXPRESS, INC. I, Cary D. Geller, the President of SGS Express, Inc., a Minnesota corporation, do here'ay certify that by resolutions in lieu of a special meeting of the sole shareholder , and so director of said corporation effective as of April 11, 1996, the following resolutions were adopted in writing by the sole shareholder and sole director, pursuant to Minnesota Statutes, Chapter 302A: RESOLVED, that Article I of the Articles of Incorporation of this corporation shall b. amended to read as follows: Article I The name of this corporation is Community Money Centers, i Inc. ' RESOLVED FURTHER, that the President of this corporation is authorized and directed to make and execute Articles of Amendment embracing the foregoing resolution, and to cause such Articles of Amendment to be filed for record in the manner required by law. . IN WITNESS WHEREOF, I have hereto set my hand this ib'day of April, 1996. Cary G Geller, President ..... , ` � ' + STATE Of�MINNI:S�TA . pEpRfk1EL1T -Qf- SIA.SE `vim rotary' oo Stale • _ . �v d Ohm h . � h � p � `� Hry�s O va ti 4 +•„N � ��- ta �p r , Minne oti• ;; ARY OF STAVE '• :. SECRETARY - r CERTIFICATE OF INCORPORATION I, Joan Anderson Growe, Secretary of State of z r, C � Minnesota, a, do certify that: ?,rticles of Incorporation, duly signed and acknowledged under oath, have been fed il o + this slate in the Office of the Secretary of State, for the incorporation oL the following corporation, a hechapt under c accordance with the p rovisions ' Statutes listed below. r This corporation is now legally organized under the lags of Minnesota. - Corporate Nape: SGS Express, Inc. f (� Corporate Charter Number: 7K -411 Chapter Formed Under: 302A (y This certificate has been issued on 04/30/1992 n v� D 1 Val Secretary of State. -- - - - y + t- �r- ��= erw =w- ire �vvhi� ' •��w = �s =wo•� n► 0 • STATE OF NUINESOTA > ; 1.1 • SECRETARY OF STATE NOTICE OF CHANGE OF REGISTERED OFFICE/ REGISTERED AGENT Please read the instructions on the back before completing this form. 1. Corporate Name: SGS EXPRESS, INC. DBA CHECK EXPRESS MN 2. Registered Office Address (No. & Street): List a complete street address or rural route and rural route box number. A post office box is not acceptable. 6525 NICOLLET AVE., RICHFIELD iniJ 55423 Street City State Zip Code 3. _ Pegi.stered -Agent (Registered agents are required ' for foreign corporations but optional for MianwWU corporations j: NONE If you do not wish to desipr,ate an agent, you must list 'NONE" in this box. DO NOT LIST THE CORPORATE NAME. In compliance with Minnesota Statutes, Section 302A.123, 303.10, 308A.025, 317A.123 or 3228.135 I certify that the above listed company has resolved to change the company's registered office and/or agent as listed above. 1 certify that I am authorized to execute this certificate and I further certify that I understand that by signing this certificate I am subject to the penalties of perjury as set forth in Minnesota Statutes Section 609.48 as if I had signed this certificate under oat hignature of Authorized Person CARY D. GELLER, PRESIDENT Name and Telephone Number of a Contact Person: CARY D GELLER t]7) 866-5674 please print legibly • Office Use Only Filing Fee: Minnesota Corporations, Cooperatives and Unilted Liability Companies: $35.00. STATE OF MINNESOTA Non - Minnesota Corporations: $50.00. WARTMENT OF. STATE FILED Make checks payable to Secretary of State DEC 201995 Return to: Minnesota Secretary of State 180 State Office Bldg.' 100 Constitution Ave. , ' SOQefiary OE St" I SL Paul, MN 55155 -1299 (612)296 -2803 • 03930275 Rev. 5193 2015019 - X139 Q STATE OF MINNESOTA FOR OFFICE USE ONLY s+eretsry of Stste Information i SECRETARY OF STATE CERTIFICATE OF 1LE0 ' "LIMED IVAME SCRFT,� M►!�ldESp�A OF - Alipaesota Statutes Chapter333 -, Read the dirzchons on revetse side before completing. Filing ee: $25.00 ' All information on this fcrm is public information. To expedite the return of your documents, please submit a stamped self- addressed envelope. consu f rotection, assu n order to d oe s able consumers to use be able to Identify the true owner of a business. r equired as a usiness c p PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK FOR MICROFILMING PURPOSES. 1. State the exact assumed name under which the business is or will be conducted: (one business name per a n THE MONEY CENTER. ' 2. State the address c;' the principal place of business. A complete street address or rural route and rural route box number is requii ed; the address cannot be a P.0-BOX. RICHFIELD MN 55423 6525 NICOLLET AVE. Zip code rim State Street 3. List the nsme and complete street address of all persons conducting business under e bu si nes s en tity, sumed le gal . • A additional sheet(s) if necessary. If the business owner is a corporation or name and registered office address. Name ,(please print) Street City State ZIP I COMMUNITY MONEY CENTERS, INC., 6525 NICOLETT AVE., RICHFIELD, MN 55423 I t 4. List the Standard Industrial Code (SIC) that most accurately d e scri b es he t nature of vefse side t this sines operating under this name 4 7 G? Select one of the 2 -digit SIC Codes list on , y S. I certify that I am authorized to sign this certificate and I further certify t t I ctto la 4 Q hat ' t.l ha_d aimed t c e rt ificate, I am subject to the penalties of perjury as s forth in Minns - , certificate under oath. Signatu.10 . (ONI Y one person listed in #3 is requireo to sign.) -, •� ; CARY D. GELLER, PRESIDENT 08/15/96 Dale Mint Name and Title CARY D. GELLER, PRESIDENT . %-4i_ ?-` Daythq Vh0he Nirmbef 05920807 Rev. 8/95 Contact Person =, •,� �,' 289011 ,.., . . O S` OF MINNESOTA E OF STATE I hereby certifii this is a true and cOM'Plede copy- of the docur gent as filed`-for record in this - .office :: DATI� ,r 4v • Secretary of State By / ��` - O • OFFICE STATE OF MINNESOTA FOR':i1SEONlY .:. -• tee+ •:::•:� SECRETARY OF STATE s.starrc>jStat:liifomsallba+ CERTIFICATE OF f/� MlhaJ _. ASSUMED NAME 3ECREQ ESQTq �F Minnesota Statutes Chapter 333 0?068 $7AJE Read the directions on reverse side before completing. U v 9S` _ Filing Fee: $25.00 All information on this form is public ! nformation. To expedite the return of your docume °.us, please submit a stamped self- addressed envelope. The filing of an assumed name does not protect a user's exclusive rights to that name. The filing is required as a consumer protection, in order to enable consumers to be able to identify the true owner of a business. PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK FOR MICROFILMING PURPOSES. 1. State the exact assumed name !ender which the business is or will be conducted: (one business name per application) Money Centers 2. State the address of the principal place of business, A complete street address or rural route and rural route box number is required: the address cannot be a P.O.Box. 6525 Nicolle* Avenue Richfield MN 55423 Street City State Zip code 3. List the namd•and complete street address of all persons conducting business under the above Assumed Name. Attach additional sheet(s) if necessary. If the business owner is a corporation or other business entity, list the legal name and registered office address. Name (please print) Street City State Zip Community Money Centers, Inc., 6525 Nicoliet Avenue, Richfield, MN 55423 4, 1 certify that I am authorized to sign this certificate and I further cepilythqt I understand that by signing this certificate, 1 am subject to the penalties of perjury as t rth in Minnesota to s se Lion 609.48 ps•if I had signed this . certificate under oath. /� ,t ,� . �.,, • �.. ,} ; Signature (O�LY one person listed in #3.is required -to sijii.) 05/ /98 Cary D. Geller. President ' Date Print Name and Title Cary D. Geller - :4- (612) '1h5 =5674 Contact Person �..`�:- , .. 3A 1,irne F*%no Number tt . 0592080/ Rev. e197 y 51L653� ' i STATE OF 'MINNESOTA 1EPARTMENT OF STATE hereby certify that this is a true and complete copy of the docur lent as filed for in this office. //,� DATED • .ccrctary of State Rv - -- : ` y MINNESOTA DEPARTMENT OF COMMERCE -- Financial Examinations Division �issst July 28, 2000 Attn: Cary Geller Community Money Centers Inc. 6219 Brooklyn Blvd. ��wc, MN 55429 Brooklyn Center This letter will serve as your renewal billing for your Minnesota Currency Exchange license that will expire December 31, 2000. Please read and follow these instructions carefully. PLEASE NOTE: According to Minnesota Statutes, Chapter 53A, regarding the licensing of currency exchanges, both state and local approval of insurance and renewal of a currency exchange license is required. According to statute, all currency exchange locations must be licensed as separate entities. This process may take up to 120 days; therefore, you should return the required forms immediately. Please sign, date and return this billing with a completed application postmarked before 12:00 midnight September 1, 2000 with a check, cashiers check, or money order in the amount o f $500.00 for each location to be renewed. Cash cannot be accepted. Make your payment payable to the Minnesota Commerce Department. Each currency location must file a separate and complete application including all required attachments listed on page 4 of the application. A separate surety bond in the amount of $10,000 (on the form provided) must be sent for each licensed location. The bond must be effective January 1, 2001, until December 31, 2001. A Power of Attorney form must also be included with the bond. Please note the acknowledgment of individual /partnership /corporation and acknowledgment of surety portion of the bond must be notarized. If all required forms are not fully completed and returned to our office with payment by September 1, 2000 your license will lapse effective December 31, 2000. If your license does lapse, you must reapply for a license using the license application form and paying the new license fees. ALL THE INFORMATION REQUESTED ABOVE MUST BE ATTACHED TO THE RENEWAL BILLING BEFORE RETURNING THE BILLING TO OUR OFFICE. FAILURE TO DO SO WILL RESULT IN A DELAY OF THE PROCESSING OF YOUR LICENSE. If you have any questions or need additional information, please feel free to contact the Financial Examinations Division at (651) 282 -9855. Pi=esident, Partner, or Owner's Signature / Date • 133 East Seventh Street, St. Paul, MN 55101 -2333 Telephone (651) 296 -2135 • Fax (651) 296 -8591 • TTY/TDD (651) 296 -2860 e -mail: financial @state.mn.us Web Site: www.commerce.state.mn.us An Equal Opportunity Employer City Council Agenda Item No. 9a City of Brooklyn Center A great place to start. A great place to stay. i MEMORANDUM DATE: November 2, 2000 TO: Michael J. McCauley, City Manager ' rnn. FROM: Jim Glasoe, Director of Community Activities, Recreation and Services SUBJECT: Resolution Expressing Appreciation for the Gift of the Brooklyn Center Lion's Club in Support of Our Annual Holly Sunday Activities The Brooklvn Center Lions Club has presented to the City a donation of two thousand dollars ($2,000.) They have designated that it be used to support our annual Holly Sunday activities. Staff recommends acceptance of this donation and asks that it be coded to the corresponding activity budgets. • 6301 Shingle Creek Pkwy, Brooklyn Center, MN 55430 -2199 • City Hall & TDD Number (612) 569 -3300 Recreation and Community Center Phone & TDD Number (612) 569 -3400 • FAX (612) 569 -3494 An Affirmative ActionlEqual Opportunities Employer Member introduced the following resolution and moved • its adoption: RESOLUTION NO. RESOLUTION EXPRESSING APPRECIATION FOR THE GIFT OF THE BROOKLYN CENTER LIONS CLUB IN SUPPORT OF OUR ANNUAL HOLLY SUNDAY ACTIVITIES WHEREAS, the Brooklyn Center Lions Club has presented to the City a donation of two thousand dollars ($2,000) and have designated it be used to support our annual Holly Sunday activities; and WHEREAS, the City Council is appreciative of the donation and commends the Brooklyn Center Lions Club for its civic effo� -.-3 NOW, THEREFORE, BE -IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota: 1. Acknowledges the donation with gratitude. • 2. Appropriates the donation to the corresponding activity budget. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. • 5560 BROOKLYN CENTER LIONS CLUB FIRSTAR BANK E6 RAND TOWER OFFICE P,O BOX 29092 MINNEAPOLIS, MN 55402 11/1/2000 BROOKLYN CENTER, MN 55429 75- 1522 -910 C PAY TO THE CITY OF BROOKLYN CENTER ""2,000.00 a ORDER OF Two Thousand and 00/100 DOLLARS 2 CITY OF BROOKLYN CENTER x ffi MEMO DONATION HOLLY SUNDAY iw 00 S 5 6 0 11 ' . 09 10 1 5 2 241° 007 2 6LL 311' City Council Agenda Item No. 9b Member introduced the following resolution and moved its adoption: RESOLUTION NO. • RESOLUTION ADOPTING GOALS FOR 2001 WHEREAS, the City Council met in a facilitated workshop to discuss goals and objectives for 2001; and WHEREAS, the goals set forth in this resolution are the result of the discussions amongst the Council in the course of the facilitated workshop. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center that the following goals be and hereby are adopted as the official goals of the City Council directing the leadership priorities for City government. Goals are not in any order of priority. Goal 1: Support Brookdale Redevelopment By: • use of tax increment assistance • review and evaluation of land use applications • prompt construction and plan review /inspection • monitoring' developer performance Goal 2: Continue and Improve Code Enforcement and Compliance Activities By: • coordinated efforts of the police and community development departments • increased effort and focus on high - density areas, while continuing neighborhood • enforcement • continuing to evaluate additional approaches to achieving improved compliance Goal 3: Increased Proactivity Towards Fighting Crime By: • increased visibility of police in neighborhoods and apartment complexes • continuing and expanding the participation rate in Neighborhood Watch programs • including public safety information in all City newsletters Goal 4: Actively Support Northeast Corner of 69th Avenue and Brooklyn Boulevard Redevelopment By: • exploring responsible and credibly - financed development proposals • ensuring that plans support the long -term goals of the City's Comprehensive Plan Goal 5: Continue Planning For and Beginning Construction of Community Center and City Hall Work By: • developing final designs and cost estimates for the project • moving towards substantial construction of the project in 2001 Goal 6: Continue and Implement Long -Term Financial Planning By: • continued five -year planning for utilities and capital improvements • continuing/expanding five -year planning for other funds • reviewing and developing contingency planning • moving toward development of two to three year budget projections for the City • • continuing to evaluate City priorities RESOLUTION NO. Goal 7: Support and Promote Major Road and Street Improvement Projects By: • starting the Brooklyn Boulevard project with the county in the year 2001 (completion in the year 2002) • Highway 100: - continuing to support and participate in the North Metro Mayor's Highway 100 Council - keeping project schedule with Mn/DOT • supporting and participating in the Highway 694 widening project, with improved sound walls, by Mn/DOT - supporting other arterial enhancements as opportunities arise Goal 8: Plan for Destination Parks By: • development of a specific financial plan for destination park improvements in the Capital Improvement Plan Goal 9: Support and Expand Joslyn Site Development By: • working with the developer to complete phaf7es II and III • measuring compatibility of the proposed France Avenue routing with neighborhood /development Goal 10: Continue Traffic Calming Efforts and Expand Information Available to the Public By: • continuing enforcement efforts through multiple resources • continuing and expanding information to the public on traffic safety and calming efforts Goal 11: Special Visioning Project to Create a Redevelopment Strategy Based on the City's Vision For the Future and Developing Opportunities to Promote Inclusion of ALL Residents in Brooklyn Center's Community Life By: • if funded, undertaking accomplishment of this goal in the Central Business District with the use of consultants who would facilitate public meetings and perform studies that would assist the City Council in developing a framework • if not funded, establishing two to four work sessions and retreats to be conducted during the period of January through March, 2001, to set direction and develop outlines for accomplishing goals Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: • and the following voted against the same: _ whereupon said resolution was declared duly passed and adopted. s City Council Agenda Item No. 9e I • Member introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION AUTHORIZING CITY MANAGER TO APPOINT DATA PRACTICES COMPLIANCE OFFICIAL WHEREAS, Minnesota Statutes, Section 13.05 Subd. 13 requires that the City appoint a City employee to act as its data practices compliance official to receive questions or concerns regarding problems in obtaining access to data or other data practices problems within the City; and WHEREAS, the City Manager is designated as Responsible Authority for Purposes of the Minnesota Government Data Practices Act. BE IT RESOLVED by the City Council of the City of Brooklyn Center that the City Manager be and hereby is authorized to appoint a City employee to act as its data practices compliance official to receive questions and concerns regarding problems in obtaining access to data or other practices problems. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. • • City Council Agenda Item No. 9d CITY OF BROOKLYN CENTER Notice is hereby given that a public hearing will be held on the 11 `" day of December, 2000, at 7:00 p.m. or as soon thereafter as the matter may be heard at the City Hall, 6301 Shingle Creek Parkway, to consider an Ordinance Amending Chapter 12 of the City Ordinances Regarding Compliance Order. Auxiliary aids for persons with disabilities are available upon request at least 96 hours in advance. Please contact the City Clerk at 763 -569 -3300 to make arrangements. ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 12 OF THE CITY ORDINANCES REGARDING LICENSING OF RENTAL UNITS THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 1. Chapter 12 of the City Ordinances of the City of Brooklyn Center is hereby amended in the following manner: Section 12 -903. OWNER OR AGENT TO APPLY. License application or renewal shall be made by the owner of rental units or his legally constituted agent. Application forms may be acquired from and subsequently filed with the compliance official. The applicant shall supply: 1. Name First, middle (if any) and last name, address, date of birth and telephone number of dwelling owner, owning partners if a partnership, corporate officers if a corporation. Section 2. This ordinance shall become effective after adoption and upon thirty days following its legal publication. Adopted this day of , 2000. Mayor ATTEST: City Clerk Date of Publication: Effective Date: (Strikeouts indicate matter to be deleted, underline indicates new matter.) 10 1 City Council Agenda Item No. 9e MEMORANDUM • TO: Mayor and Council Members FROM: Michael J. McCauley, City Manager DATE: November 9, 2000 SUBJECT: Supplemental Indentures on Behalf of Brookdale II Limited Partnership Apex Asset Management Corporation has a purchase agreement with Reliastar and Ryan Construction to purchase two office buildings. As part of the transaction, minor modifications are proposed to the industrial revenue bonds issued for the construction of one of the office buildings. The office tower located on Lot 2, Block 2 Brooklyn Farms Subdivision (which is adjacent to the Reliastar owned property that the City is potentially purchasing) is also subject to a Minimum Assessment Agreement and a Deficiency Agreement. In order to allow the transfer of the bonds and facilitate the purchase of the two office buildings by Apex Asset Management Corporation, it is necessary to approve the Supplemental Indentures of Trust. Additionally, we are proposing that the obligations under the Assessment Agreement and the Deficiency Agreement must be fully discharged. To release the Assessment Agreement and the Deficiency Agreement, Briggs and Morgan has reviewed the maximum allowable payments that could be made under the Deficiency Agreement, without violating the agreement by negatively impacting the tax exempt status of the tax increment bonds. The tax increment bonds are a separate issue from the industrial revenue bonds which would be transferred under the Supplemental Indentures of Trust. Briggs and Morgan has identified that the potential maximum payment that could be made under the Deficiency Agreement would be approximately $270,000. In order to expedite the transfer of the property and to fix a maximum amount, we are proposing that the Deficiency Agreement and Assessment Agreement be released upon payment of $260,000 or such amount not exceeding $260,000 as is finally determined by Briggs and Morgan as the maximum payment that the City could receive both to satisfy past Deficiency Agreement obligations and to liquidate any future Deficiency Agreements -t-? a fixed sum. We are still awaiting the final form of the resolutions from bond counsel and they will be distributed on Monday evening. The resolutions will allow for the technical approvals necessary to allow Apex Asset Management Corporation to assume all of the obligations of the current owners under the industrial revenue bonds, which are solely an obligation of the owner of the property. As indicated, it is necessary to fix the obligations under the Deficiency and Assessment Agreements before approving a transfer of the industrial development bonds. Additionally, the purchaser (Apex) would not be in a position to close with Reliastar and Ryan Properties without a resolution of the Deficiency and Assessment Agreement issues. The status of our purchase with Reliastar is that Reliastar will be convening its investment committee and anticipates providing a final answer on the sale of the vacant lot to the City prior to the City Council meeting on Monday night. This would allow us to resolve all of the issues regarding this area. • Councilmember introduced the following resolution and moved its adoption: RESOLUTION NO. A RESOLUTION PROVIDING FOR THE EXECUTION AND DELIVERY OF TWO SUPPLEMENTAL INDENTURES OF TRUST RELATING TO TWO SERIES OF REFUNDING REVENUE BONDS PURSUANT TO MINNESOTA STATUTES, SECTIONS 469.152 TO 469.1651, ON BEHALF OF BROOKDALE TWO LIMITED PARTNERSHIP WHEREAS, the City is empowered pursuant to the provisions of Minnesota Statutes, Section 469.152 to 469.1651, as amended (the "Act "), to issue its revenue bonds, including refunding revenue bonds, with respect to projects as described in the Act; and WHEREAS, in furtherance of the purposes of the Act, the City issued its City of Brooklyn Center, Minnesota, Commercial Development Refunding Revenue Bonds (Brookdale Associates Limited Partnership Project) Series 1991 in the aggregate principal amount of $5,100,000 (the "Series 1991 Bonds ") pursuant to an Indenture of Trust dated as of March 1, 1991 (the "Series 1991 Indenture ") between the City and American National Bank and Trust Company, a national banking association (n/k/a Firstar Bank, National Association and referred to herein as the "Series • 1991 Trustee "), for the purpose of providing funds to refinance the costs of acquisition, construction and equipping of a commercial facility located in the City of Brooklyn Center and known as Brookdale Corporate Center Three ( "Project Three "), and lent the proceeds from the sale thereof to Brookdale Associates Limited Partnership (the `Brookdale Associates Partnership ") pursuant to a Mortgage Loan Agreement dated as of March 1, 1991 between the City and Brookdale Associates Partnership (the "Series 1991 Loan Agreement "); and WHEREAS, upon their issuance, the Series 1991 Bonds were secured by a Guaranty Agreement dated March 1, 1991 (the "Series 1991 Guaranty ") issued by ReliaStar Life Insurance Company, f /k/a Northwestern National Life Insurance Company (the "Guarantor "); and WHEREAS, pursuant to and in accordance with the terms of the Series 1991 Loan Agreement, the Brookdale Associates Partnership proposes to sell Project Three to BCC Associates, LLC, a Minnesota limited liability company (the "Company ") and the Company proposes to assume the obligations of Brookdale Associates Partnership pursuant to the Series 1991 Loan Agreement; and WHEREAS, in connection with the purchase of Project Three by the Company, Brookdale Associates Partnership has required that the Series 1991 Guaranty be terminated; and WHEREAS, in connection with the termination of the Series 1991 Guaranty, the . Trustee has required that the Company obtain an alternate credit enhancement facility (a "Substitute • RESOLUTION NO. Credit") which would provide security for payments due to the holders of the Series 1991 Bonds at least equal to the security provided under the Series 1991 Guaranty; and WHEREAS, the Company proposes to provide an Irrevocable Direct Pay Letter of Credit issued by Firstar Bank, N.A., St. Paul, Minnesota, to serve as the Substitute Credit for the Series 1991 Bonds upon the transfer of Project Three; and WHEREAS, the City, the Company and the Series 1991 Trustee now desire to enter into a First Supplemental Indenture of Trust (the "Series 1991 Supplemental Indenture ") to amend the Series 1991 Indenture to modify certain provisions and add other provisions relating to the issuance by Firstar Bank, N.A. (the "Letter of Credit Bank ") of an irrevocable letter of credit to secure payment of the Series 1991 Bonds and to make certain other changes relating thereto as provided therein; and WHEREAS, in furtherance of the purposes of the Act, the City issued its City of Brooklyn Center, Minnesota, Industrial Development Refunding Revenue Bonds (Brookdale Two Limited Partnership Project) Series 1994 in the aggregate principal amount of $8,100,000 (the "Series 1994 Bonds ") pursuant to a Trust Indenture dated as of November 1, 1994 (the "Series 1994 • Indenture ") between the Issuer and First Trust National Association, a national banking association (n/k/a U.S. Bank Trust National Association and referred to herein as the "Series 1994 Trustee "), for the purpose of providing funds to refinance the costs of acquisition, construction and equipping of a commercial facility located in the City of Brooklyn Center and known as Brookdale Corporate Center Two ( "Project Two "), and lent the proceeds from the sale thereof to Brookdale Two Limited Partnership (the `Brookdale Two Partnership ") pursuant to a Loan Agreement dated as of November 1, 1994 between the Issuer and the Prior Partnership (the "Series 1994 Loan Agreement "); and WHEREAS, upon their issuance, the Series 1994 Bonds were secured by a Guaranty Agreement dated November 1, 1994 (the "Series 1994 Guaranty ") issued by the Guarantor; and WHEREAS, pursuant to and in accordance with the terms of the Series 1994 Loan Agreement, the Brookdale Two Partnership proposes to sell Project Two to the Company and the Company proposes to assume the obligations of Brookdale Two Partnership pursuant to the Loan Agreement; and WHEREAS, in connection with the purchase of Project Two by the Company, Brookdale Two Partnership has required that the Series 1994 Guaranty be terminated and that a "Substitute Credit" (as defined in the Series 1994 Indenture) be provided to secure the Bonds from and after such acquisition in accordance with the provisions of the Series 1994 Indenture and the Series 1994 Loan Agreement; and O WHEREAS, the Company proposes to provide an Irrevocable Direct Pay Letter of Credit issued by Firstar Bank, N.A., St. Paul, Minnesota, to serve as the Substitute Credit for the Series 1994 Bonds upon the transfer of Project Two; and e RESOLUTION NO. WHEREAS, the City, the Company and the Series 1994 Trustee now desire to enter into a First Supplemental Indenture of Trust (the "Series 1994 Supplemental Indenture ") to amend the Series 1994 Indenture to modify certain provisions and add other provisions relating to the issuance by Firstar Bank, N.A. of an Irrevocable Letter of Credit to secure payment of the Series 1994 Bonds and to make certain other changes relating thereto as provided therein; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center, Minnesota, as follows: Authority. The City is, by the Constitution and laws of the State of Minnesota, including Minnesota Statutes, Sections 469.152 to 469.165 1, as amended (the "Act "), authorized to enter into agreements and amendments thereto necessary or convenient in the exercise of the powers granted by the Act. Documents Presented. The Company has proposed to this Council that the City authorize the execution and delivery of (a) the Series 1991 Supplemental Indenture to amend the terms of the Series 1991 Indenture and (b) the Series 1994 Supplemental Indenture to amend the terms of the Series 1994 Indenture to permit the substitution of two Irrevocable Direct Pay Letters of Credit to be issued by Firstar Bank, National Association to replace the Series 1991 Guaranty with respect to the Series 1991 Bonds and to replace the Series 1994 Guaranty with respect to the Series 1994 Bonds, respectively. Forms of the Series 1991 Supplemental Indenture relating to the Series 1991 Bonds and the Series 1994 Supplemental Indenture relating to the Series 1994 Bonds have been submitted to the City and are now on file in the office of the City Clerk. The City further approves the assignment and assumption by the Company of the obligations of Brookdale Associates Partnership with respect to the Series 1991 Bonds and of Brookdale Two Partnership with respect to the Series 1994 Bonds and the acquisition by the Company of Project Three and Project Two. Annroval and Execution of Documents. The forms of the Series 1991 Supplemental Indenture and the Series 1994 Supplemental Indenture, referred to in paragraph 2, are approved. The Series 1991 Supplemental Indenture and the Series 1994 Supplemental Indenture shall be executed in the name and on behalf of the City by the Mayor and the City Clerk, or other officers of the City, in substantially the forms on file, but with all such changes therein, not inconsistent with the Act or other law, as may be approved by the officers executing the same, which approval shall be conclusively evidenced by the execution thereof, and then shall be delivered to the Trustee. Copies of all documents shall be delivered and filed as provided therein. Certificates. etc. The Mayor, City Clerk and other officers of the City are authorized and directed to prepare and furnish to Bond Counsel, the Series 1991 Trustee, the Series 1994 Trustee and the Company certified copies of all proceedings and records of the City relating to the Series 1991 Supplemental Indenture and the Series 1994 Supplemental Indenture, and such other affidavits and certificates as may be required to show the facts appearing from the books and records in the officers' custody and control or as otherwise known to them; and all such certified copies, RESOLUTION NO. • certificates and affidavits, including any heretofore furnished, shall constitute representations of the City as to the truth of all statements contained therein. The City staff is further authorized and directed to do all things necessary to assist the Company in the acquisition of Project Three and Project Two and assumption of the Series 1991 Bonds and the Series 1994 Bonds and the transactions contemplated thereby, and the City authorizes the Series 1991 Trustee and the Series 1994 Trustee to take such actions under the Series 1991 Indenture and the Series 1994 Indenture as may be necessary to complete such transactions. Additional Reauirements. The authorizations and approvals set forth herein shall be conditioned upon the settlement to the satisfaction of the City Manager and other officers of the City executing the documents described herein of all obligations and agreements arising from the Contract for Private Development, dated December 19, 1985 with respect to Project Three, including without limitation the Assessment Agreement and the Deficiency Agreement entered into in the forms attached thereto; which condition shall be conclusively evidenced by the execution by the Mayor, City Clerk and other officers of the City and delivery to the Trustee of the documents referred to above. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. DRAFT DATED: NOVEMBER 2 2000 • CITY OF BROOKLYN CENTER, MINNESOTA AND U.S. BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE . FIRST SUPPLEMENTAL INDENTURE OF TRUST DATED AS OF NOVEMBER 2000 This Instrument Was Prepared By: Daniel R.W. Nelson Best & Flanagan LLP 4000 U.S. Bank Place 601 Second Avenue South Minneapolis, Minnesota 55402 TABLE OF CONTENTS (This Table of Contents is not a part of the Indenture of Trust and is only for convenience of reference. Section S 1.01 Definitions ............................. ........:...................... Section S3.04. Deposit of Redemption Price; Bonds Payable on Redemption Date ...............5 Section S3.09. Funds for Purchase of Bonds ............................................. ..............................6 Section S3.10. Delivery of Purchased Bonds ............................................. ..............................6 Section S3.11. Delivery of Proceeds of Sale of Purchased Bonds ............. ..............................7 Section S3.12. Duties of Trustee, the Remarketing Agent and Tender Agent with Respect to Purchaseof Bonds .............................................................. ..............................8 Section S3.13. Additional Provision Regarding Remarketing and Purchase of Tendered Bonds................................................................................. ..............................8 Section53.14. Pledged Bonds .................................................................. ..............................9 Section S5.01. Creation of the Bond Fund ................................................ .............................10 Section S5.01A. Use of Moneys in the Bond Fund ..................................... .............................13 Section 55:05. Bond Purchase Fund ......................................................... .............................13 Section 55.06. Letter of Credit .................................................................. .............................14 Section S5.03A Investment of Funds in Bond Fund ................................... .............................15 SectionS7.01. Defaults ............................................................................. .............................15 SectionS7.02. Acceleration ...................................................................... .............................16 Section S 11.06. Supplemental Indentures Requiring Consent of Letter of Credit Bank ......... 17 Section S12.01. Amendments to Loan Agreement and Letter of Credit Not Requiring Consent ofOwners of Bonds .......................................................... .............................17 • Section S12.02. Amendments to Agreement and Letter of Credit Requiring Consent of Owners ofBonds ............................................................................ .............................17 SectionS13.07. Notices .............................................................................. .............................18 Section S13.08. Certain References Ineffective After Guaranty Termination Date ................19 Section S 13.09. Interpretation, Amendments to Indenture ......................... .............................19 9 • -i- FIRST SUPPLEMENTAL INDENTURE OF TRUST THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST is dated as of November 2000, between the City of Brooklyn Center, Minnesota (the "Issuer" or "Municipality" herein) and U.S. Bank Trust National Association, a national banking association (the "Trustee "). WITNESSETH: WHEREAS, the Issuer is empowered pursuant to the provisions of Minnesota Statutes, Section 469.152 to 469.1651, as amended (the "Act"), to issue its revenue bonds, including refunding revenue bonds, with respect to projects as described in the Act; and WHEREAS, in furtherance of the purposes of the Act, the Issuer issued its City of Brooklyn Center, Minnesota, Industrial Development Refunding Revenue Bonds (Brookdale Two Limited Partnership Project) Series 1994 in the aggregate principal amount of $8,100,000 (the "Bonds ") pursuant to a Trust Indenture dated as of November 1, 1994 (the "Original Indenture ") between the Issuer and First Trust National Association, a national banking association (n/k/a U.S. Bank Trust National Association and referred to herein as the "Trustee "), for the purpose of providing funds to refmance the costs of acquisition, construction and equipping of a commercial facility located in the City of Brooklyn Center and known as • Brookdale Corporate Center Two (the "Project "), and lent the proceeds from the sale thereof to Brookdale Two Limited Partnership (the "Prior Partnership ") pursuant to a Loan Agreement dated as of November 1, 1994 between the Issuer and the Prior Partnership (the "Loan Agreement "); and WHEREAS, upon their issuance, the Bonds were secured by a Guaranty Agreement dated November 1, 1994 (the "Guaranty ") issued by ReliaStar Life Insurance Company, f/k/a Northwestern National Life Insurance Company (the "Guarantor "); and WHEREAS, pursuant to and in accordance with the terms of the Loan Agreement, the Prior Partnership proposes to sell the Project to BCC Associates LLC, a Minnesota limited liability company -(the "Company ") and the Company proposes to assume the obligations of the Prior Partnership pursuant to the Loan Agreement; and WHEREAS, in connection with the purchase of the Project by the Company, the Prior Partnership has required that the Guaranty be terminated and that a Substitute Credit be provided to secure the Bonds from and after such acquisition; and WHEREAS, the Company proposes to provide an Irrevocable Direct Pay Letter of Credit issued by Firstar Bank, N.A., St. Paul, Minnesota, to serve as the Substitute Credit upon the transfer of the Project; and WHEREAS, the Issuer, the Company and the Trustee now desire to amend the Indenture • to modify certain provisions and add other provisions relating to the issuance by Firstar Bank, N.A. " the Letter of Credit Bank" of an ' ( ) irrevocable letter of credit (the Letter of Credit" ) to secure payment of the Bonds and to make certain other changes relating thereto as provided herein. NOW, THEREFORE, THE INDENTURE IS HEREBY AMENDED, MODIFIED AND SUPPLEMENTED AS FOLLOWS: Section 51.01 Definitions. All capitalized, undefined terms used herein shall all have the meanings assigned to such terms in Article I of the Indenture. In addition, the following words and phrases shall have the following meanings: "Act of Bankruptcy" means the filing of a petition in bankruptcy (or the other commencement of a bankruptcy or similar proceeding) by or against the Company, any partner of the Company or the Issuer under any applicable bankruptcy, insolvency, reorganization or similar law, now or hereafter in effect. "Assignment and Assumption Agreement" means the Assignment and Assumption Agreement dated as of November 2000 between Brookdale Two Limited Partnership, as assignor, and BCC Associates LLC, as assignee, and consented to by the Trustee and the Issuer. "Bond Purchase Fund" means the fund by that name created by Section 55.05 hereof. , "Company" or "Borrower" means (i) BCC Associates LLC, a Minnesota limited liability company, and (ii) any surviving, resulting, or transferee entity as provided in Section 5.02 of the Agreement. "Company Bonds" means (1) Bonds purchased with money provided to the Tender Agent for the account of the Company, or (2) Bonds registered in the name of the Company designated as being held for the account of the Company, that are not Pledged Bonds. "Credit Agreement" means (i) the Letter of Credit and Reimbursement Agreement dated as of this date between the Company and Firstar Bank, N.A., and any amendments and supplements thereto and (ii) any credit enhancement agreement or reimbursement agreement between the Company and any Substitute Credit Issuer, and any amendments and supplements thereto. "Eligible Money" means: (A) proceeds of the Bonds which are held in a separate and segregated subaccount in the Bond Fund; (B) proceeds from the remarketing of any Bonds tendered for purchase pursuant to this Indenture nture to any Person other than the Issuer, the -2- Company, any guarantor of the obligations of the Company under the Agreement or any "insider" (as defined in the United States Bankruptcy Code) of the Issuer, the Company or such guarantor; money drawn under the Letter of Credit that is either applied directly (C ) Y Pp Y to the payment of principal or Purchase Price of, or premium, if any, or interest on the Bonds or which, if not so applied, is held in a separate and segregated subaccount under the Indenture until so applied; (D) money deposited in the Bond Fund that has been continuously on deposit with the Trustee for a period of at least 123 days during which no Act of Bankruptcy in respect of the Issuer, the Company or any guarantor of the obligations of the Company under the Agreement has occurred; (E) any other money or securities, if there is delivered to the Trustee an opinion from Independent Counsel having expertise in bankruptcy matters (who, for purposes of such opinion, may assume that no Owner is an "insider," as defined in the United States Bankruptcy Code) to the effect that the use of such money or securities to pay the principal or Purchase Price of, or premium, if any, or interest on the Bonds would not constitute a voidable preferential payment in the event of the occurrence of an Act of Bankruptcy in respect of the Issuer, the Company or any guarantor of the obligations of the Company under the Loan Agreement; and (F) earnings derived from the investment of any of the foregoing; provided that such proceeds, money or income shall not be deemed to be Eligible Money or available for payment of the Bonds if, among other things, an injunction, restraining order or stay is in effect preventing such proceeds, money or income from being applied to make such payment. "Eligible Money Account" means the account by that name established in the Bond Fund as provided in Section 55.01 hereof. "Guarantor" means (i) Northwestern National Life Insurance Company (now known as ReliaStar Life Insurance Company), in its capacity as issuer of the Guaranty , and (ii) any Substitute Credit Issuer including the Letter of Credit Bank. "Guaranty" means the Guaranty Agreement dated November 1, 1994 from the Guarantor to the Trustee, and an amendments or supplements thereto. Y pP "Guaranty Termination Date" means November _, 2000. "Letter of Credit" initially means the irrevocable direct -pay Letter of Credit issued by the Letter of Credit Bank to the Trustee, pursuant to the Credit Agreement, effective November -3- 2000, and any extensions thereof, and upon the issuance and delivery of a Substitute Credit Facility in accordance with Section 4.10 of the Agreement, "Letter of Credit" shall include such Substitute Credit Facility, and any subsequent extensions or replacements thereof. "Letter of Credit Account" means the account of that name established in the Bond Fund as provided in Section 55.01 hereof. "Letter of Credit Bank" means Firstar Bank, N.A., a national banking association, in its capacity as issuer of the initial Letter of Credit, and its successors and assigns, and if a Substitute Credit Facility is issued, the issuer or provider of such Substitute Credit Facility, and its successors and assigns. "Letter of Credit Purchase Account" means the account of that name established in the Bond Purchase Fund pursuant to Section 55.05 hereof. "Loan Agreement" or "Agreement" means the Loan Agreement dated November 1, 1994 between the Issuer and the Prior Partnership, as amended or supplemented from time to time, and as assigned to and assumed by the Company pursuant to the Assignment and Assumption Agreement. "Mandatory Purchase Date" means any date on which Bonds are subject to purchase upon the mandatory purchase thereof pursuant to Section 3.08 hereof. `Non- Eligible Money Account means the account of that name established in the Bond Fund as provided in Section 55.01. "Pledged Bonds" means Bonds purchased with money provided to the Tender Agent pursuant to a draw on the Letter of Credit. "Purchase Payments" means funds furnished by the Letter of Credit Bank for the purpose of paying the Purchase Price for any Bond to be purchased or delivered for purchase pursuant to Sections 3.08 and S5.05 of this Indenture. "Purchase - Price" means when used with respect to the purchase of a Bond pursuant to Sections 3.08 and 55.05 hereof, an amount equal to the principal amount of such Bonds to be so purchased plus interest accrued and unpaid to, but not including, the applicable date of purchase; provided, however, that if such date of purchase is an interest payment date for which money is available for the payment of such interest, accrued interest will not constitute a part of the Purchase Price but will be paid to the Owner in the ordinary manner. "Remarketing Account" means the account of that name established in the Bond Purchase Fund pursuant to Section 55.05 hereof. • -4- "Remarketing Agent" means the Remarketing Agent acting as such under the Remarketing Agreement. "Principal Office" of the Remarketing Agent means the principal office of the Remarketing Agent designated in the Remarketing Agreement. "Substitute Credit Facility" or "Substitute Credit" shall mean one or more credit facilities, other than the Guaranty, delivered to the Trustee pursuant to Section 4.10 of the Agreement, including, without limitation, a guaranty, letter of credit, or surety bond, which separately or together, provide for (i) the payment of the principal of, premium, if any, and interest on the Bonds when due, (ii) payments for the purpose of paying the Purchase Price for any Bond to be purchased pursuant to Article IV of this Indenture, and (iii) the payment of the principal, premium, if any or interest on the Bonds or payment with respect to the Purchase Price for any Bonds paid pursuant to Article IV of this Indenture (herein "Recapture Amounts ") when such payment has been avoided, rescinded or must otherwise in any manner be restored or returned upon an Act of Bankruptcy of the Company, the Issuer, or otherwise, all as though such payment had not been made or obligations discharged. In the event of the delivery by the Company to the Trustee pursuant 'to Section 4.10 of the Agreement of a Substitute Credit Facility, unless the context or defined term otherwise requires, (a) "Guaranty" shall include reference to the Substitute Credit Facility, (b) "Guarantor" shall include reference to the issuer of the Substitute Credit Facility, and (c) "Termination Date" shall include reference to the expiration date of the Substitute Credit Facility, or the effective date of any termination permitted pursuant to the terms thereof. . "Substitute Credit Issuer" means a commercial bank, savings and loan association, insurance company or other business entity which has issued a Substitute Credit Facility. Section 53.04. Deposit of Redemption Price, Bonds Payable on Redemption Date. On or before any redemption date, the Issuer shall deposit with the Trustee or with a Paying Agent, from moneys provided by the Company, an amount of money sufficient to pay the redemption price of all the Bonds which are to be redeemed on that date. Such money shall be held in trust for the benefit of the Persons entitled to such redemption price and shall not be deemed to be part of the Trust Estate. The principal of, premium, if any, and interest on all Bonds subject to redemption shall be paid first from money drawn under the Letter of Credit, and second from other Eligible Money available to the Trustee. Money drawn under the Letter of Credit shall not be used to pay the redemption premium on any Bond, unless the Letter of Credit expressly provides for the payment of such redemption premium. In no event shall Bonds be redeemed using money other than Eligible Money. So long as a Letter of Credit is in effect, in the case of an optional redemption of Bonds pursuant to the first paragraph of Section 3.01 hereof, the Trustee shall not give notice of redemption to Owners pursuant to Section 3.03 hereof unless, on or prior to the 35"' day next preceding the redemption date, (1) (a) the Letter of Credit Bank has given to the Trustee its . written consent to such redemption, or (b) the Company shall have deposited with the Trustee an amount of Eligible Money equal to the principal for the Bonds subject to redemption and interest -5- to accrue thereon to the redemption date, plus (2) the Company shall have deposited with the Trustee Eligible Money equal to the redemption premium, if any, on the Bonds to be redeemed. The deposits described in the immediately preceding sentences shall be credited to the Eligible Money Account. If the Letter of Credit expressly provides for the payment of redemption premium, then the deposit described in the preceding clause (2) either need not be Eligible Money or may be waived with the written consent of the Letter of Credit Bank. Notice of redemption having been given as aforesaid, the Bonds so to be redeemed shall, on the redemption date, become due and payable at the redemption price therein specified and from and after such date (unless the Issuer shall default in the payment of the redemption price) such Bonds shall cease to bear interest. Upon surrender of any such Bond for redemption in accordance with said notice, such Bond shall be paid by the Issuer at the redemption price. Installments of interest with a due date on or prior to the redemption date shall be payable to the Owners of the Bonds registered as such on the relevant Regular Record Dates according to the terms of such Bonds and the provisions of Section 55.01. If any Bond called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the redemption date at the rate prescribed therefor in the Bond. Section 53.09. Funds for Purchase of Bonds. On the date Bonds are to be purchased pursuant to Section 3.08 hereof, such Bonds shall be purchased at the Purchase Price only from the funds listed below. Subject to the provisions of Section 55.06 funds for the payment of the Purchase Price shall be derived from the following sources in the order of priority indicated: (a) the proceeds of the sale of such Bonds which have been remarketed by the Remarketing Agent pursuant to Section 53.13 hereof to any entity other than the Company, the Issuer or any "affiliate" of the Company or the Issuer (as defined in the United States Bankruptcy Code) or any guarantor of the Company's obligations under the Loan Agreement; (b) moneys furnished to the Trustee by the Letter of Credit Bank under the Letter of Credit; and (c) any other moneys furnished to the Trustee and available for such purpose. Section 53.10. Delivery of Purchased Bonds. (a) Bonds purchased with moneys described in Section 53.09(a) hereof shall be delivered by the Tender Agent, at its Delivery Office, to or upon the order of the purchasers thereof. (b) Bonds purchased with moneys described in Section 53.09(b) hereof shall be delivered by the Tender Agent to or upon the order of the Letter of Credit Bank pursuant to the Credit Agreement. -6- (c) Bonds purchased with moneys described in Section S3.09(c) shall, at the direction of the Company, be (A) delivered as instructed by the Company or (B) delivered to the Trustee for cancellation; provided, however, that any Bonds so purchased after the selection thereof by the Trustee for redemption shall be delivered to the Trustee for cancellation. (d) The Trustee shall promptly (but in no event later than 9:00 A.M., St. Paul, Minnesota time, on the date designated for purchase of the related Bonds) deliver to the Tender Agent all non - recourse due - bills, if any, delivered to the Trustee in accordance with Section 3.08 of the Indenture. (e) The Tender Agent shall deliver to the person to whom the Tender Agent is to deliver such Bonds the nonrecourse due - bills, if any, delivered to the Tender Agent with respect to such Bonds in accordance with Section 3.08 hereof. (f) Notwithstanding anything herein to the contrary, so long as the Bonds are held under the Book -Entry System, Bonds will not be delivered as set forth in (a) -(d) above, rather, transfers of beneficial ownership of the Bonds to the persons indicated above will be effected on the books of the Securities Depository pursuant to its rules and procedures. • Bonds delivered as provided in this Section shall be registered in the manner directed by the recipient thereof. Section 53.11. Delivery of Proceeds of Sale of Purchased Bonds. (a) Except in the case of the sale of any Pledged Bonds, the proceeds of the sale of any Bonds delivered or deemed delivered to the Tender Agent pursuant to Section 3.08 hereof, to the extent not required to pay the Purchase Price thereof in accordance with Section S3.09 hereof, shall be paid to or upon the order of the Company. (b) In the event the Remarketing Agent shall have remarketed any Pledged Bonds and the Company shall have directed the Letter of Credit Bank to deliver such Pledged Bonds to the Tender Agent pursuant to the Credit Agreement, such Bonds shall be delivered by the Tender Agent in accordance with Section S3.IO(b) hereof and the proceeds of the sale of such Bonds shall be delivered to the Letter of Credit Bank; provided that any accrued interest in excess of amounts then due to the Letter of Credit Bank pursuant to the Credit Agreement received upon the sale of such Bonds shall be delivered by the Letter of Credit Bank to or upon the order of the Company. • -7- Section 53.12. Duties of Trustee, the Remarketing Agent and Tender Agent with Respect • to Purchase of Bonds. (a) The Trustee and Remarketing Agent shall deliver to the Tender Agent, the Company and the Letter of Credit Bank a copy of each notice delivered to it in accordance with Section 3.08 hereof. (b) Immediately upon the delivery to it of Bonds in accordance with Section 3.08, the Tender Agent shall give telephonic or telegraphic notice to the Company, the Trustee and the Letter of Credit Bank specifying the principal amount of the Bonds so delivered. (c) The Trustee shall cause, upon the direction of the Tender Agent on the day Bonds are to be purchased, the Letter of Credit Bank to make payments under the Letter of Credit in accordance with the terms thereof to the extent required by Sections S3.09 and 55.06 hereof to provide for timely payment of the Purchase Price of Bonds. (d) The Trustee shall cause arrangements satisfactory to the Trustee and Tender Agent to be made and thereafter continue whereby funds from the sources described in Section S3.09 hereof will be made available to the Tender Agent for the timely payment of the Purchase Price of the Bonds. Any moneys remitted by the Trustee to the Tender Agent shall be accompanied by notice describing the source(s) of such moneys. Section S3.13. Additional Provision Regarding Remarketing and Purchase of Tendered Bonds (a) Remarketing of Tendered Bonds. Unless otherwise instructed by the Company, the Remarketing Agent shall offer for sale and use its best efforts to find purchasers for all Bonds which are subject to mandatory purchase pursuant to Section 3.08. The terms of any sale by the Remarketing Agent shall provide for the payment of the Purchase Price for tendered Bonds by the Remarketing Agent to the Tender Agent on the purchase date in immediately available funds at or before 8:30 a.m., St. Paul, Minnesota time. The Remarketing Agent shall not remarket any Bonds pursuant to this Section to the Company or any affiliate of the Company. (b) Purchase of Tendered Bonds. (1) Notice At or before 9:00 a.m., St. Paul, Minnesota time, on the purchase date, the Tender Agent shall give notice to the Trustee, the Letter of Credit Bank, the Company and the Issuer, specifying the amount of remarketing proceeds received and principal amount of tendered Bonds as to which the Remarketing Agent has not found a purchaser at that time or has found a purchaser from whom payment has not been received. At or before 9:00 a.m., St. Paul, Minnesota time, on the purchase date, the • Remarketing Agent shall give notice to the Tender Agent and the Trustee of the names, -8- • addresses and taxpayer identification numbers of the purchasers, the denominations of Bonds to be delivered to each purchaser and, if available, payment instructions for regularly scheduled interest payments, or of any changes in any such information previously communicated. (2) Sources of Payments. The Remarketing Agent shall cause to be paid to the Tender Agent on the purchase date of tendered Bonds all amounts representing _ proceeds of the remarketing of such Bonds (the "Remarketing Proceeds "), such payments to be made in the manner and at the time specified in Section S5.05 hereof. If the Remarketing Proceeds will not be sufficient to pay the Purchase Price on the purchase date of Bonds (other than Pledged Bonds or Company Bonds), the Tender Agent shall give notice to the Trustee prior to 9:00 a.m., St. Paul, Minnesota time, on the purchase date to demand payment under the Letter of Credit, and the Trustee shall at or prior to 9:30 a.m., St. Paul, Minnesota time, on the purchase date, make such demand in the manner set forth in the Letter of Credit, and the Letter of Credit Bank shall furnish immediately available funds by 12:30 p.m., St. Paul, Minnesota time on such purchase date, in an amount sufficient, together with the Remarketing Proceeds, to enable the Tender Agent to pay the Purchase Price of such Bonds to be purchased on such purchase date; provided, the Trustee shall not make any demand for payment under the Letter of Credit with respect to Company Bonds or Pledged Bonds. If the Trustee shall not have received any notice from the Tender Agent, the Trustee shall draw on the Letter of Credit in an amount equal to the Purchase Price of all Bonds to be purchased on such purchase S date. The Trustee shall authorize direct payment by the Letter of Credit Bank to the Tender Agent. If moneys received by the Tender Agent from Remarketing Proceeds and from draws under the Letter of Credit will not be sufficient to pay the Purchase Price on the purchase date of Bonds (other than Pledged Bonds or Company Bonds), the Tender Agent shall give notice to the Issuer and the Company by 1:00 p.m., St. Paul, Minnesota time, on the purchase date, to furnish immediately available funds to the Tender Agent by 1:30 p.m., St. Paul, Minnesota time, on such purchase date, in an amount sufficient together with the Remarketing Proceeds, to enable the Tender Agent to pay the Purchase Price of such Bonds (other than Pledged Bonds or Company Bonds) to be purchased on such purchase date. The Company shall deliver or cause to be delivered such amounts by such time so that there will be delivered to the Tender Agent immediately available funds in an amount equal to any insufficiency in Remarketing Proceeds and draws under the Letter of Credit with respect to the Purchase Price of such Bonds prior to 1:30 p.m., St. Paul, Minnesota time, on the purchase date. All moneys received by the Tender Agent as Remarketing Proceeds, from demands by the Trustee under the Letter of Credit or from the Company, as the case may be, shall be deposited by the Tender Agent in the appropriate account of the Bond Purchase Fund as herein provided and shall be used solely for the payment of the Purchase Price of tendered Bonds and shall not be commingled with other funds held by the Tender Agent. Section 53.14. Pledged Bonds. Bonds purchased with proceeds made available through the Letter of Credit pursuant to this Article shall be acquired for the benefit of the Letter of Credit Bank. The Letter of Credit Bank shall be the Beneficial Owner of such Bonds, which -9- i shall constitute "Pledged Bonds," and shall be delivered to and held by the Trustee as agent for the Letter of Credit Bank (and shall be shown as Pledged Bonds on the Bond Register). The Remarketing Agent shall at the request of the Letter of Credit Bank continue to use its best efforts to arrange for the sale of any Pledged Bonds at the Purchase Price, subject to full reinstatement of the amount available to be drawn under, the Letter of Credit with respect to such Bonds. If the Remarketing Agent remarkets any Pledged Bond, the Remarketing Agent shall direct the purchaser of such Pledged Bond to transfer, by 9:00 a.m., St. Paul, Minnesota time, on the purchase date, the Purchase Price of such remarketed Pledged Bond to the Tender Agent for deposit into a separate subaccount of the Remarketing Account of the Bond Purchase Fund, to be held for the benefit of the Letter of Credit Bank and disbursed from such subaccount solely for the purposes described in this paragraph. The Tender Agent shall immediately notify the Letter of Credit Bank of the receipt of the Purchase Price for such Pledged Bond, and upon receipt of the Purchase Price and of written evidence satisfactory to the Tender Agent of full reinstatement of the amount available to be drawn under the Letter of- Credit (as contemplated by the preceding paragraph), the Tender Agent shall advise the Trustee of such reinstatement and such Pledged Bond shall be released from the pledge of the Letter of Credit Bank. The Tender Agent shall transfer such Purchase Price to the Letter of Credit Bank upon receipt thereof and of written evidence satisfactory to the Tender Agent of full reinstatement of the amount available to be drawn under the Letter of Credit (as contemplated by the preceding paragraph) to the extent that amounts remain due and owing to the Letter of Credit Bank under the Letter of Credit, and give all required notices, in accordance with the terms of the Letter of Credit. If moneys remain on deposit with the Tender Agent in such subaccount after payment is made to the Letter of Credit Bank as described in the preceding sentence and upon written notice from the Letter of Credit Bank that no amounts are owed to the Letter of Credit Bank pursuant to the Letter of Credit, such moneys shall be paid to, or upon the order of, the Company. Notwithstanding anything to the contrary in this subsection, if and for so long as the Bonds are held in the Book -Entry System, the registration requirements under this subsection shall be deemed satisfied if Pledged Bonds are (A) registered in the name of the Securities Depository or its nominee, (B) credited on the books of the Securities Depository to the account of the Trustee (or its nominee) and (C) further credited on the books of the Trustee (or such nominee) to the account of the Letter of Credit Bank (or its designee). Section 55.01. Creation of the Bond Fund. There is hereby created and established with the Trustee a trust fund to be designated "BROOKLYN CENTER, MINNESOTA - Bond Fund, Brookdale Corporate Center Two Project," which shall be used to pay when due the principal and premium, if any, and interest on the Bonds, and which shall include separate subaccounts designated the Letter of Credit account, the Eligible Money Account and the Non - Eligible ti Money Account. There shall be deposited into the Bond Fund from time to time the following: -10- I • (a) all payments specified in Section 4.02 of the Agreement (other than amounts paid for the Trustee's or the Issuer's own account); (b) any moneys received pursuant to the Mortgage; (c) any moneys drawn under the Letter of Credit shall be deposited in the separate Letter of Credit Account of the Bond Fund and shall not be commingled with any other moneys held by the Trustee; (d) all other moneys received by the Trustee under and pursuant to any of the provisions of the Agreement which are required to be or which are accompanied by directions that such moneys are to be paid into the Bond Fund. Any amounts paid to the Trustee that do not constitute Eligible Money shall be held in the Non - Eligible Money Account and shall not be commingled with any other money held by the Trustee. At such time as ' money in the Non - Eligible Money Account shall constitute Eligible. Money, as evidenced by an opinion delivered to the Trustee satisfying the requirements set forth in clause (1) of the definition of "Eligible Money" herein, they shall be transferred to the Eligible Money Account upon written direction of the Company. Any amounts received for deposit in the Bond Fund that constitute Eligible Money (other than amounts drawn under the Letter of Credit), and any amounts deposited in the Non - Eligible Money Account which at a later date become Eligible Money, shall be held in the Eligible Money Account and shall not be commingled with any other money held by the Trustee. Any amounts drawn under the Letter of Credit for the payment of principal of, premium, if any, or interest on the Bonds shall be held in the Letter of Credit Account and shall not be commingled with any other money held by the Trustee. The money in the Bond Fund shall be held in trust and shall be applied solely in accordance with the provisions of this Indenture to pay the principal of and redemption premium, if any, and interest on the Bonds as the same become due and payable at maturity, upon redemption, by acceleration or otherwise, or, to the extent such funds are not necessary to pay principal of, premium, if any, or interest on Bonds then due, to reimburse the Letter of Credit Bank for drawings made or other amounts owing under the Credit Agreement. So long as the Letter of Credit is in effect, the Trustee, prior to 9:00 a.m., St. Paul, Minnesota time, on the Business Day next preceding each interest payment date and each date on which principal is due and payable on the Bonds (whether at maturity or upon proceedings for redemption, or by acceleration), shall draw on the Letter of Credit an amount which shall be sufficient for the purpose of paying the principal of, and premium, if any (if the Letter of Credit then covers premium) and interest due and payable on the Bonds (other than Pledged Bonds and Bonds owned by the Company) on such payment date. The Trustee shall deposit all money received pursuant to each draw on the Letter of Credit therefor in the Letter of Credit Account in the Bond Fund and shall apply such money to the payment of the principal of and interest on or redemption price of Bonds as provided in this Section. Money in the Eligible Money Account and the Non - Eligible Money Account in the Bond Fund, in that order, and not necessary for the -11- payment of principal of, premium, if any, or interest on the Bonds then due, shall be used immediately to reimburse the Letter of Credit Bank under the Credit Agreement for draws on the Letter of Credit that were used for such purpose and to pay obligations owing to the Letter of Credit Bank under the Credit Agreement then due and payable. The Trustee is to receive from the Company pursuant to Section 4.02 of the Agreement the full amount of principal of, and premium, if any, and interest due on, the Bonds on each interest payment date, principal payment date, redemption date, or acceleration date, as the case may be, if either (i) no Letter of Credit is then in effect, or (ii) if by 11:30 a.m., St. Paul, Minnesota time, on such date insufficient funds to pay such principal, premium, if any, and interest are not available therefor in the Letter of Credit Account and the Eligible Money Account. When a Letter of Credit is in effect, if there is not sufficient Eligible Money in the Letter of Credit Account and the Eligible Money Account by 11:30 a.m., St. Paul, Minnesota time, on any interest payment date, principal payment date, redemption date, or acceleration date, as the case may be, to pay all principal of, premium, if any, and interest on the Bonds due on such date, the Trustee shall promptly give Electronic Notice to the Company of the amount of any such deficiency. The Trustee is authorized and directed to withdraw sufficient funds from the Letter of Credit Account in the Bond Fund to a principal of redemption premium, if an (but only pYP p � p p � Y� Y if and to the extent that the Letter of Credit has been drawn upon to pay such redemption premium), and interest on the Bonds as the same become due and payable at maturity or upon redemption and to make said funds so withdrawn available to any Paying Agent for the purpose of paying said principal, redemption premium, if any, and interest. On the same Business Day on which money is disbursed from the Bond Fund pursuant to the preceding sentence, if money then remains in the Bond Fund, such money shall be disbursed to the Letter of Credit Bank to the extent amounts are then owed to the Letter of Credit Bank pursuant to the Credit Agreement. The Trustee may rely on a certificate from the Letter of Credit Bank that certifies the amounts so owed at any time. In the event of a default under the Letter of Credit, or at such time as no Letter of Credit secures the Bonds, the Trustee shall use all money then on deposit in the Bond Fund, first from the Eligible Money Account and thereafter the Non - Eligible Money Account, to pay principal of, and premium, if any, and interest on, the Bonds. The Trustee, upon the written instructions from the Issuer given pursuant to written direction of the Company, shall use excess Eligible Money in the Bond Fund to redeem all or part of the Bonds Outstanding and to pay interest to accrue thereon prior to such redemption and redemption premium, if any, on the next succeeding redemption date for which the required redemption notice may be given or on such later redemption date as may be specified by the Company, in accordance with the provisions of Article III hereof, so long as the Company is not in default with respect to any payments under the Agreement and to the extent said moneys are in excess of the amount required for payment of Bonds theretofore matured or called for redemption; provided, further, however, if a Letter of Credit is then outstanding, that no amounts are then owed to the Letter of Credit Bank under the Credit Agreement, as certified by the Letter of Credit Bank. The Company may cause such excess money in the Bond Fund or such part thereof or other money of the Company, as the Company may direct, to be applied by the Trustee -12- on a best efforts basis for the purchase of Bonds in the open market for the purpose of cancellation at prices not exceeding the principal amount thereof plus accrued interest thereon to the date of such purchase. After payment in full of the principal of, redemption premium, if any, and interest on the Bonds (or after provision has been made for the payment thereof as provided in this Indenture), all rebatable arbitrage to the United States, the fees, charges and expenses of the Trustee, any Paying Agents, the Remarketing Agent, the Tender Agent, the Issuer and any governmental unit, any other amounts required to be paid under this Indenture and the Agreement, and all amounts owed to the Letter of Credit Bank under the Credit Agreement, all amounts remaining in the Bond Fund shall be paid to the Company upon the expiration or sooner termination of the Agreement. Section S5.01 A. Use of Moneys in the Bond Fund. Except as provided in Section S3.09 hereof, moneys in the Bond Fund shall be used solely for the payment of the principal of, premium, if any, and interest on the Bonds and for the redemption of the Bonds prior to maturity. Subject to the provisions of Section S5.06 hereof, funds for such payments of the principal of and premium, if any, and interest on the Bonds shall be derived from the following sources in the order of priority indicated: (a) moneys furnished to the Trustee from draws under the Letter of Credit (other than Purchase Payments); and • b amounts deposited into the Bond Fund pursuant a t to Section S5.01 () p P () hereof which are derived pursuant to Section 4.02 of the Agreement; (c) any other moneys furnished to the Trustee and available for such purpose. Section 55.05. Bond Purchase Fund. There is hereby created with the Tender Agent a segregated trust fund to be designated the "Bond Purchase Fund." The Bond Purchase Fund shall consist of sub - accounts for the Bonds to be designated respectively the "Remarketing Account," and the "Letter of Credit Purchase Account." The Tender Agent shall deposit or cause to be deposited into the Remarketing Account, when and as received, all money delivered to the Tender Agent as and for the Purchase Price of remarketed Bonds by or on behalf of the Remarketing Agent. The Tender Agent shall disburse money from the Remarketing Account to pay the Purchase Price of Bonds properly tendered for purchase upon surrender of such Bonds (or to reimburse the Letter of Credit Bank for amounts paid under the Letter of Credit with respect to such Bonds). The Trustee or Tender Agent, as the case may be, shall deposit or cause to be deposited into the Letter of Credit Purchase Account when and as received, all proceeds made available pursuant to Section S3.09(b) to pay the Purchase Price from draws under the Letter of Credit. • The Tender Agent shall disburse moneys from the Letter of Credit Purchase Account to pay the -13- Purchase Price of Bonds properly tendered for purchase upon surrender of such Bonds; provided, that such proceeds shall not be applied to purchase Pledged Bonds or Company Bonds. The funds held by the Tender Agent in the Bond Purchase Fund shall not be subject to any lien of this Indenture. The moneys in the Bond Purchase Fund shall be used solely to pay the Purchase Price of Bonds as aforesaid (or to reimburse the Letter of Credit Bank for amounts paid under the Letter of Credit for such purpose) and may not be used for any other purposes, and to that end the Letter of Credit Bank shall have an express lien on such funds subject to the rights of Owners of the Bonds. It shall be the duty of the Tender Agent to hold the money in the Bond Purchase Fund, without liability for interest thereon, for the benefit of the Owners of Bonds which have been properly tendered for purchase or deemed tendered on the purchase date, and if sufficient funds to pay the Purchase Price for such tendered Bonds shall be held by the Tender Agent in the Bond Purchase Fund for the benefit of the Owners thereof each such Owner shall thereafter be restricted exclusively to the Bond Purchase Fund for any claim of whatever nature on such Owner's part under this Indenture or on, or with respect to, such tendered Bond. Funds held in the Bond Purchase Fund for the benefit of Owners of Tendered Bonds shall be held in trust and either not invested or invested in overnight obligations of the type described in clause (a) of the definition of "Government Obligations" in Article I hereof. Money in the Bond Purchase Fund which remains unclaimed two years after the applicable purchase date shall, at the request of the Company, and if the Company is not, at the time, to the knowledge of the Tender Agent, in default with respect to any covenant in the Agreement or the Bonds, be paid to the Company, and the Owners of the Untendered Bonds for which the deposit was made shall thereafter be limited to a claim against the Company. Section 55.06. Letter of Credit. The Letter of Credit Bank will issue and deliver to the Trustee the Letter of Credit, which will provide funds for the payment of the principal of, and interest on the Bonds at the scheduled maturity date, redemption date or acceleration date thereof, and for the payment of the Purchase Price of Bonds that have been tendered for purchase and for which proceeds of remarketing have not been received. The Trustee shall hold the Letter of Credit for the benefit of the Owners of the Bonds until the Letter of Credit terminates in accordance with its terms. If at any time during the term of the Letter of Credit the Trustee resigns or is removed, and a successor Trustee is appointed and qualified under this Indenture, the resigning Trustee shall request that the Letter of Credit Bank transfer the Letter of Credit to the successor Trustee, and shall take all actions necessary to effect the transfer of the Letter of Credit to the successor Trustee. When the Letter of Credit terminates in accordance with its terms, the Trustee shall immediately surrender the Letter of Credit to the Letter of Credit Bank. The Trustee shall draw amounts under the Letter of Credit in accordance with the terms and conditions set forth therein at the times, in the manner and for the purposes set forth in this Indenture. The Issuer agrees that the Trustee in its name may enforce all rights of the Trustee and of the Issuer and all obligations of the Letter of Credit Bank (including the obligations of the Letter of Credit Bank to honor drafts duly presented in accordance with the terms and conditions • of the Letter of Credit) under and pursuant to the Letter of Credit for the benefit of the Owners of -14- • the Bonds. All amounts drawn under the Letter of Credit shall be held by the Trustee or the Tender Agent in the Letter of Credit Account in the Bond Fund or the Letter of Credit Purchase Account in the Bond Purchase Fund and used only for the purposes set forth herein. In the event that principal of and interest on Bonds are paid from Eligible Money (other than proceeds from a draw under the Letter of Credit) and the Indenture is not discharged under Section 10.01 hereof, the Trustee agrees, upon receipt of a request from a Company Representative, to deliver to the Letter of Credit Bank an instruction to reduce the stated amount of the Letter of Credit by an amount equal to the principal amount of Bonds paid from Eligible Money and interest thereon but not to a stated amount less than that then required by the Rating Agency. The Trustee also agrees to take all steps necessary to reduce the stated amount of the Letter of Credit in accordance with its terms. Section S5.03A Investment of Funds in Bond Fund. Notwithstanding the foregoing provisions of Section 5.03 hereof, any moneys held as a part of the Bond Fund (except the Letter of Credit Account) shall be invested or reinvested by the Trustee without'instruction, directioii or control by the Company, any partner of the Company or the Issuer, to the extent permitted by law, in interest bearing deposit accounts fully secured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Company or in United States Treasury bills with maturities of no more than thirty (30) days from the date of acquisition thereof. Any moneys held in the Letter of Credit Account of the Bond Fund shall not be invested or reinvested by the Trustee. Section S7.01. Defaults. If any of the following events occur, it is hereby declared to constitute a "Default ": (a) Default in the due and punctual payment of interest on any Bond when the same becomes due and payable; (b) Default in the due and punctual payment of the principal of or premium, if any, on any Bond, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; (c) Default in the due and punctual payment of the Purchase Price of any Bond at the time required by Section 3.08 hereof; (d) Receipt by the Trustee of written notice from the Letter of Credit Bank that an "Event of Default" has occurred under the Credit Agreement and is continuing and directing the Trustee to accelerate the Bonds; (e) The occurrence of a Default under the Agreement; or -15- (f) Default in the performance or observance of any other of the covenants, agreements or conditions on the part of the Issuer in this Indenture or in the Bonds contained and failure to remedy the same after notice thereof pursuant to this Article VII. Section S7.02. Acceleration. Upon the occurrence p e e of i an Default under subsection a O Y O, (b), (c), (e) or (f) of Section S7.01, the Trustee may, and at the written request of the owners of not less than twenty -five percent (25 %) in aggregate principal amount of Bonds Outstanding shall, or (ii) at the written direction of the Letter of Credit Bank delivered pursuant to subsection (d) of Section 57.01, the Trustee shall, by notice in writing delivered to the Issuer, the Company and the Letter of Credit Bank declare the principal of all Bonds and the interest accrued thereon to the date of such acceleration immediately due and payable. The provisions of the preceding paragraph are subject to the condition that if, after the principal of the Bonds shall have been so declared to be due and payable, and (x) during any period that the Letter of Credit is in effect, before any notice of acceleration of the payment of the Bonds shall have been given to the Owners of Bonds Outstanding, and (y) before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall cause to be deposited with the Trustee a sum of Eligible Moneys sufficient to pay all matured installments of interest upon all Bonds and the principal of an and all Bonds which shall have become e due otherwise than by reason of such declaration (with interest upon such principal and, to the extent permissible by law, on overdue installments of interest, at the rate per annum specified in the Bonds) and such amount as shall be sufficient to cover reasonable compensation and reimbursement of expenses payable to the Trustee, and all Defaults hereunder other than nonpayment of the principal of Bonds which shall have become due by said declaration shall have been remedied, then, in every such case, such Default shall be deemed waived and such declaration and its consequences rescinded and annulled, and the Trustee shall promptly give written notice of such waiver, rescission or annulment to the Issuer, the Company, the Letter of Credit Bank, the Paying Agent and the Remarketing Agent, and shall give notice thereof by mail to all Owners of Outstanding Bonds appearing on the list kept on file by the Bond Registrar; but no such waiver, rescission and annulment shall extend to or affect any subsequent Default or impair any right or remedy consequent thereon. The provisions of the second preceding paragraph are subject to the condition that any waiver by the Letter of Credit Bank of any event of default under the Credit Agreement and, in the case of Section S7.01(d) hereof, that an event of default under the Credit Agreement has been waived, a rescission and annulment of its consequences, but only if such waiver, rescission and annulment shall have been made prior to the time that notice of acceleration of the Bonds shall have been given to Owners of Bonds Outstanding, shall constitute a waiver of the corresponding Default (as set forth in clause (d) of Section S7.01) under this Indenture and a rescission and annulment of the consequences thereof. If notice of such default under the Credit Agreement shall have been given as provided herein and if thereafter, but prior to the giving of notice of acceleration of the Owners, the Trustee shall have received written notice from the Letter of Credit Bank that such event of default shall have been waived, the Trustee shall promptly give written notice of such waiver, rescission or annulment to the Issuer, the Company, the Letter of • Credit Bank, the Paying Agent and the Remarketing Agent, but no such waiver, rescission or -16- annulment shall extend to or affect any subsequent Default or impair any right or remedy S consequent thereon. Upon the .occurrence of a Default specified in Section 57.01 above and an acceleration hereunder during any period when the Letter of Credit is in effect, the Trustee shall (i) make immediate demand upon the Letter of Credit Bank under the provisions of the Letter of Credit for all amounts sufficient to pay all principal of, if any, and accrued and unpaid interest through the accelerated date for - payment on the Bonds Outstanding and (ii) shall state in the notice of said acceleration given to Owners the effective date of acceleration and payment on the Bonds and that such demand has been made upon the Letter of Credit Bank for the amounts referred to above. Interest shall continue to accrue on the Bonds until the payment date determined by the Trustee, which payment date must be within the period for which principal of and interest on the Bonds is covered by amounts available to be drawn under the Letter of Credit. With regard to any Default described in clause (e) of Section 57.01 concerning which notice is given to the Issuer, the Letter of Credit Bank and the Company under the provisions of this Section, the Issuer hereby grants the Company and the Letter of Credit Bank full authority for the account of the Issuer to perform any covenant or obligation alleged in said notice to constitute a Default, in the name and stead of the Issuer with full power to do any and all things and acts to the same extent that the Issuer could do and to perform any such things and acts and with power of substitution. . Any agent appointed for such purpose by the Company or the Letter of Credit Bank may exercise rights of the Company and the Letter of Credit Bank hereunder, and the effect of the exercise of any such right by any such agent shall be the same as if such right had been exercised by the Company or the Letter of Credit Bank. Section S 11.06. Supplemental Indentures Requiring Consent of Letter of Credit Bank. Notwithstanding any other provision of this Indenture to the contrary, no supplemental indenture shall be entered into without the prior consent of the Letter of Credit Bank so long as a Letter of Credit securing the Bonds is in effect, and the Letter of Credit Bank is not in default in payment of any amounts due under the Letter of Credit. Section S12.01. Amendments to Loan Agreement and Letter of Credit Not Requiring Consent of Owners of Bonds. The Issuer and the Trustee may, with the consent of the Letter of Credit Bank, and without the consent of or notice to the Owners of Bonds, consent to any amendment, change or modification of the Loan Agreement and Letter of Credit as may be required (i) by the provisions of the Loan Agreement and Letter of Credit, (ii) for the purpose of curing any ambiguity or formal defect or omission in the Loan Agreement and Letter of Credit, or (iii) in connection with any other change therein which, in the judgment of the Trustee, is not to the prejudice of the Trustee or the Owners of Bonds. Section S 12.02. Amendments to Agreement and Letter of Credit Requiring Consent of Owners of Bonds. Except for the amendments, changes or modifications as provided in -17- Section S12.01 hereof, neither the Issuer nor the Trustee shall consent to any other amendment, change or modification of the Loan Agreement or Letter of Credit without mailing of notice and the written approval or consent of the Letter of Credit Bank and the Owners of at least two- thirds (2/3) in aggregate principal amount of the Outstanding Bonds, provided that the consent of the Letter of Credit Bank and the Owners of all Bonds Outstanding is required for any amendment, change or modification of the Loan Agreement or Letter of Credit that would permit the termination or cancellation of the Loan Agreement or Letter of Credit or a reduction in or postponement of the payments under the Loan Agreement or Letter of Credit or any change in the provisions relating to payment thereunder. If at any time the Issuer and the Company shall request the consent of the Trustee to any such proposed amendment, change or modification of the Loan Agreement or Letter of Credit, the Trustee shall, upon being satisfactorily indemnified_ with respect to expenses, cause notice of such proposed amendment, change or modification to be given in the same manner as provided by Section 11.04 hereof with respect to supplemental indentures. Such notice shall briefly set forth the nature of such proposed amendment, change or modification and shall state that copies of the instrument embodying the same are on file at the Principal Office of the Trustee for inspection by all Owners of Bonds. Section S13.07. Notices. Any notice, request, complaint, demand, communication or other paper shall be sufficiently given and shall be deemed given when delivered or mailed by registered or certified mail, postage prepaid or sent by telegram, addressed as follows: If to the Issuer: City of Brooklyn Center, Minnesota • 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 -2113 Attention: City Manager If to the Trustee: U.S. Bank Trust National Association 180 East Fifth Street, 2nd Floor St. Paul, MN 55101 Attention: Corporate Trust Department If to the Company: Brooklyn Corporate Center Two c/o APEX Asset Management Corporation 600 South Highway 169, Suite 1580 Minneapolis, MN 55426 Attention: Stewart Stender If to the Tender Agent: Miller, Johnson & Kuehn, Inc. 5500 Wayzata Boulevard, Suite 800 Minneapolis, MN 55416 • Attention: Bryan Nelson -18- If to the Remarketing Agent: Miller, Johnson & Kuehn, Inc. 5500 Wayzata Boulevard, Suite 800 Minneapolis, MN 55416 Attention: Bryan Nelson and If to the Letter of Credit Bank: Firstar Bank Mail Location: MN- SP -I2CB 101 East Fifth Street, 12"' Floor St. Paul, MN 55101 -1880 Attention: Paul S. Bauer or to the issuer of a Substitute Credit Facility at its address designated in writing to the Trustee. The Issuer, the Company, the Trustee, the Remarketing Agent, the Tender Agent and the Guarantor may designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section S13.08. Certain References Ineffective After Guaranty Termination Date. . From and after the Guaranty Termination Date all references to the Guarantor (other than references applciable to a Substitute Credit Issuer, including the Letter of Credit Bank, in their capacity as successor to the Guarantor or the Guaranty in this Indenture and the Bonds shall be ineffective. Section 513.09. Interpretation, Amendments to Indenture. The foregoing First Supplemental Indenture of Trust is provided to supplement and amend the Original Indenture in order to provide for the Substitute Credit in accordance with the terms of Section 4.10 of the Loan Agreement and Section 11.01 of the Indenture, and in order to obtain the evidence from Standard & Poor's Ratings Group (the "Rating Agency ") to the effect that the Rating Agency has reviewed the proposed Substitute Credit and that the substitution of the proposed Substitute Credit will not result in a reduction or withdrawal of the rating then borne by the Bonds. To the extent that any provisions of the Original Indenture are inconsistent with or in conflict with the terms and conditions of this First Supplemental Indenture of Trust, this First Supplemental Indenture of Trust shall supercede and control the application of such provisions from and after its date of execution and delivery. To the extent that provisions of the Original Indenture are not altered or amended hereby, such unaffected provisions of the Original Indenture shall remain in full force and effect. For pmP oses of clarification sections in this Supplemental Indenture which bear the same section number as sections of the Original Indenture are intended to be amended and superceded in their entirety by the provisions of this • First Supplemental Indenture of Trust, and numbered sections herein which do not appear in the -19- Original Indenture are intended to be supplemental and in addition to the provisions of the Original Indenture. 14827/201042/ #128245 i • -20- IN WITNESS WHEREOF, the Issuer has caused these presents to be executed in its name by its duly authorized official; and to evidence its acceptance of the trusts hereby created, the Trustee has caused these presents to be executed in its corporate name and with its corporate seal hereunto affixed and attested by its duly authorized officer, as of the date first above written. CITY OF BROOKLYN CENTER, MINNESOTA By: Its By: Its U.S. BANK TRUST NATIONAL • ASSOCIATION By: Its Authorized Officer • B -1 Accepted and Agreed to: BCC ASSOCIATES, LLC, a Minnesota limited liability company By: Its: • B -2 DRAFT DATED: NOVEMBER 7, 2000 • CITY OF BROOKLYN CENTER, MINNESOTA AND FIRSTAR BANK, NATIONAL ASSOCIATION AS TRUSTEE FIRST SUPPLEMENTAL INDENTURE OF TRUST DATED AS OF NOVEMBER 2000 This Instrument Was Prepared By: Daniel R.W. Nelson Best & Flanagan LLP 4000 U.S. Bank Place 601 Second Avenue South Minneapolis, Minnesota 55402 • I TABLE OF CONTENTS (This Table of Contents is not a part of the Indenture of Trust and is only for convenience of reference.) p y SectionS1.01 Definitions .......................................................................... ..............................2 SectionS1.05. Notices ............................................................................... ..............................5 Section S1.15. Certain References Ineffective After Guaranty Termination Date ..................6 Section S1.16. Interpretation, Amendments to Indenture ......................... ............................... 7 Section S3.08. Funds for Purchase of Bonds ............................................. ..............................7 Section S3.09. Delivery of Purchased Bonds ............................................. ..............................7 Section S3.10. Delivery of Proceeds of Sale of Purchased Bonds ............. ..............................8 Section S3.11. Duties of Trustee, the Remarketing Agent and Tender Agent Respect to Purchase of Bonds ............................................ ..............................9 Section S3.12. Additional Provision Regarding Remarketing and Purchase of Tendered Bonds......................... ............................... ......................... ..............................9 Section53.13. Pledged Bonds .................................................................. .............................10 Section S4.04. Creation of the Bond Fund .............................................. ............................... l l Section S4.04A. Use of Moneys in the Bond Fund ..................................... .............................14 Section 54.08. Bond Purchase Fund ......................................................... .............................14 SectionS4.12. Letter of Credit .................................................................. .............................15 Section S4.1OA. Investment of Funds in Bond Fund ................................... .............................17 SectionS6.01. Defaults ............................................................................. .............................18 SectionS6.02. Acceleration ...................................................................... .............................18 Section S9.01. Amendments to Loan Agreement and Letter of Credit Not Requiring Consent of Owners of Bonds ........................... .............................20 Section 59.02. Amendments to Agreement and Letter of Credit Requiring Consent of Owners of Bonds ............................................ .............................20 Section S10.06. Supplemental Indentures Requiring Consent of Letter of Credit Bank ......... 20 Section S12.04. Deposit of Redemption Price; Bonds Payable on Redemption Date .............21 -i- FIRST SUPPLEMENTAL INDENTURE OF TRUST THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST is dated as of November 2000, between the City of Brooklyn Center, Minnesota (the "Issuer" or "Municipality" herein) and Firstar Bank, National Association, a national banking association (the "Trustee "). WITNESSETH: WHEREAS, the Issuer is empowered pursuant to the provisions of Minnesota Statutes, Section 469.152 to 469.1651, as amended (the "Act"), to issue its revenue bonds, including refunding revenue bonds, with respect to projects as described in the Act; and WHEREAS, in furtherance of the purposes of the Act, the Issuer issued its City of Brooklyn Center, Minnesota, Commerciat Development Refunding Revenue Bonds ( Brookdale Associates Limited Partnership Project) Series 1991 in the aggregate principal amount of $5,100,000 (the "Bonds ") pursuant to an Indenture of Trust dated as of March 1, 1991 (the "Original Indenture ") between the Issuer and American National Bank and Trust Company, a national banking association (n/k/a Firstar Bank, National Association and referred to herein as the "Trustee "), for the purpose of providing funds to refinance the costs of acquisition, construction and equipping of a commercial facility located in the City of Brooklyn Center and known as Brookdale Corporate Center Three (the "Project "), and lent the proceeds from the sale thereof to Brookdale Associates Limited Partnership (the "Prior Partnership ") pursuant to a Mortgage Loan Agreement dated as of March 1, 1991 between the Issuer and the Prior Partnership (the "Loan Agreement "); and WHEREAS, upon their issuance, the Bonds were secured by a Guaranty Agreement dated March 1, 1991 (the "Guaranty ") issued by ReliaStar Life Insurance Company, f/k/a Northwestern National Life Insurance Company (the "Guarantor "); and WHEREAS, pursuant to and in accordance with the terms of the Loan Agreement, the Prior Partnership proposes to sell the Project to BCC Associates LLC, a Minnesota limited liability company -(the "Company ") and the Company proposes to assume the obligations of the Prior Partnership pursuant to the Loan Agreement; and WHEREAS, in connection with the purchase of the Project by the Company, the Prior Partnership has required that the Guaranty be terminated; and WHEREAS, in connection with the termination of the Guaranty, the Trustee has required that the Company obtain an alternate credit enhancement facility (a "Substitute Credit ") which would provide security for payments due to the Bondholders at least equal to the security provided under the Guaranty; and • WHEREAS, the Company proposes to provide an Irrevocable Direct Pay Letter of Credit issued by Firstar Bank, N.A., St. Paul, Minnesota, to serve as the Substitute Credit upon the transfer of the Project; and WHEREAS, the Issuer, the Company and the Trustee now desire to amend the Indenture to modify certain provisions and add other provisions relating to the issuance by Firstar Bank, N.A. (the "Letter of Credit Bank ") of an irrevocable letter of credit (the "Letter of Credit ") to secure payment of the Bonds and to make certain other changes relating thereto as provided herein. NOW, THEREFORE, THE INDENTURE IS HEREBY AMENDED, MODIFIED AND SUPPLEMENTED AS FOLLOWS: Section S1.01 Definitions. All capitalized undefined terms used herein shall have the meanings assigned to such terms in Article I of the Indenture. In addition, the following words and phrases shall have the following meanings: "Act of Bankruptcy" means the filing of a petition in bankruptcy (or the other commencement of a bankruptcy or similar proceeding) by or against the Company, any partner of the Company or the Issuer under any applicable bankruptcy, insolvency, reorganization or similar law, now or hereafter in effect. "Assignment and Assumption Agreement" means the Assignment and Assumption Agreement dated as of November _, 2000 between Brookdale Associates Limited Partnership, as assignor, and BCC Associates LLC, as assignee, and consented to by the Trustee and the Issuer. "Bond Purchase Fund" means the fund by that name created by Section S4.08 hereof. "Company" or "Obligor" means (i) BCC Associates LLC, a Minnesota limited liability company, and (ii) an surviving, resulting, transferee entity as provided in Section 6.1 of the Y g g� tY P Agreement. "Company Bonds" means (1) Bonds purchased with money provided to the Tender Agent for the account of the Company, or (2) Bonds registered in the name of the Company designated as being held for the account of the Company, that are not Pledged Bonds. Credit Agreement means (i) the Reimbursement Agreement dated as of this date between the Company and Firstar Bank, N.A., and any amendments and supplements thereto and (ii) any credit enhancement agreement or reimbursement agreement between the Company and any Substitute Credit Issuer, and any amendments and supplements thereto. -2- "Eligible Money" means: (A) proceeds of the Bonds which are held in a separate and segregated subaccount in the Bond.Fund; (B) proceeds from the remarketing of any Bonds tendered for purchase pursuant to this Indenture to any Person other than the Issuer, the Company, any guarantor of the obligations of the Company under the Agreement or any "insider" (as defined in the United States Bankruptcy Code) of the Issuer, the Company or such guarantor; (C) money drawn under the Letter of Credit that is either applied directly to the payment of principal or Purchase Price of, or premium, if any, or interest on the Bonds or which, if not so applied, is held in a separate and segregated subaccount under the Indenture until so applied; (D) money deposited in the Bond Fund that has been continuously on deposit with the Trustee for a period of at least 123 days during which no Act of Bankruptcy in respect of the Issuer, the Company or any guarantor of the obligations of the Company under the Agreement has occurred; (E) any other money or securities, if there is delivered to the Trustee an opinion from Independent Counsel having expertise in bankruptcy matters (who, for purposes of such opinion, may assume that no Owner is an "insider," as defined in the United States Bankruptcy Code) to the effect that the use of such money or securities to pay the principal or Purchase Price of, or premium, if any, or interest on the Bonds would not constitute a voidable preferential payment in the event of the occurrence of an Act of Bankruptcy in respect of the Issuer, the Company or any guarantor of the obligations of the Company under the Loan Agreement; and (F) earnings derived from the investment of any of the foregoing; provided that such proceeds, money or income shall not be deemed to be Eligible Money or available for payment of the Bonds if, among other things, an injunction, restraining order or stay is in effect preventing such proceeds, money or income from being applied to make such payment. "Eligible Money Account" means the account by that name established in the Bond Fund as provided in Section 54.04 hereof. "Guarantor" means (i) Northwestern National Life Insurance Company (now known as ReliaStar Life Insurance Company), in its capacity as issuer of the Guaranty , and (ii) any Substitute Credit Issuer includin g the Letter of Credit Bank. -3- "Guaranty" means the Guaranty Agreement dated November I; 1994 from the Guarantor to the Trustee, and any amendments or supplements thereto. "Guaranty Termination Date" means November ____, 2000. "Letter of Credit" initially means the irrevocable direct -pay Letter of Credit issued by the Letter of Credit Bank to the Trustee, pursuant to the Credit Agreement, effective November _, 2000, and any extensions thereof, and upon the issuance and delivery of a Substitute Credit Facility in accordance with Section _ hereof, "Letter of Credit" shall include such Substitute Credit Facility, and any subsequent extensions or replacements thereof. "Letter of Credit Account" means the account of that name established in the Bond Fund as provided in Section 54.04 hereof. "Letter of Credit Bank" means Firstar Bank, N.A., a national banking association, in its capacity as issuer of the initial Letter of Credit, and its successors and assigns, and if a Substitute Credit Facility is issued, the issuer or provider of such Substitute Credit Facility, and its successors and assigns. "Letter of Credit Purchase Account" means the account of that name established in the Bond Purchase Fund pursuant to Section S4.08 hereof. Loan Agreement or Agreement means the Loan Agreement dated November 1, 1994 between the Issuer and the Prior Partnership, as amended or supplemented from time to time, and as assigned to and assumed by the Company pursuant to the Assignment and Assumption Agreement. "Mandatory Purchase Date" means any date on which Bonds are subject to purchase upon the mandatory purchase thereof pursuant to Section 3.06 hereof. "Non- Eligible Money Account" means the account of that name established in the Bond Fund as provided in Section 54.04. "Pledged Bonds" means Bonds purchased with money provided to the Tender Agent pursuant to a draw on the Letter of Credit. "Purchase Payments" means funds furnished by the Letter of Credit Bank for the purpose of paying the Purchase Price for any Bond to be purchased or delivered for purchase pursuant to Sections 3.06 and 54.08 of this Indenture. "Purchase Price" means when used with respect to the purchase of a Bond pursuant to Sections 3.06 and S4.08 hereof, an amount equal to the principal amount of such Bonds to be so purchased plus interest accrued and unpaid to, but not including, the applicable date of purchase; • provided, however, that if such date of purchase is an interest payment date for which money is -4- available for the payment of such interest, accrued interest will not constitute a part of the • Purchase Price but will be paid to the Owner in the ordinary manner. "Remarketing Account" means the account of that name established in the Bond Purchase Fund pursuant to Section 54.08 hereof. "Remarketing Agent" means the Remarketing Agent acting as such under the Remarketing Agreement. "Principal Office" of the Remarketing Agent means the principal office of the Remarketing Agent designated in the Remarketing Agreement. "Substitute Credit Facility" or "Substitute Credit" shall mean one or more credit facilities, other than the Guaranty, delivered to the Trustee pursuant to Section _ hereof, including, without limitation, a guaranty, letter of credit, or surety _bond, which separately or together, provide for (i) the payment of the principal of, premium, if any, and interest on the Bonds when due, (ii) payments for the purpose of paying the Purchase Price for any Bond to be purchased pursuant to Article 1Y of this Indenture, and (iii) the payment of the principal, premium, if any or interest on the Bonds or payment with respect to the Purchase Price for any Bonds paid pursuant to Article IV of this Indenture (herein "Recapture Amounts ") when such payment has been avoided, rescinded or must otherwise in any manner be restored or returned ' upon an Act of Bankruptcy of the Company, the Issuer, or otherwise, all as though such payment had not been made or obligations discharged. In the event of the delivery by the Company to the Trustee pursuant to Section — hereof, of a Substitute Credit Facility, unless the context or defined term otherwise requires, (a) "Guaranty" shall include reference to the Substitute Credit Facility, (b) "Guarantor" shall include reference to the issuer of the Substitute Credit Facility, and (c) "Termination Date" shall include reference to the expiration date of the Substitute Credit Facility, or the effective date of any termination permitted pursuant to the terms thereof. "Substitute Credit Issuer" means a commercial bank, savings and loan association, insurance company or other business entity which has issued a Substitute Credit Facility. Section S 1.05. Notices. Any notice, request, complaint, demand, communication or other paper shall be sufficiently given and shall be deemed given when delivered or mailed by registered or certified mail, postage prepaid or sent by telegram, addressed as follows: If to the Issuer: City of Brooklyn Center, Minnesota 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 -2113 Attention: City Manager • -5- i If to the Trustee: U.S. Bank Trust National Association 180 East .Fifth Street, 2nd Floor St. Paul, MN 55101 Attention: Corporate Trust Department If to the Company: BCC Associates, LLC c/o APEX Asset Management Corporation 600 South Highway 169, Suite 1580 Minneapolis, MN 55426 Attention: Stewart Stender If to the Tender Agent: Miller, Johnson & Kuehn, Inc. 5500 Wayzata Boulevard, Suite 800 Minneapolis, MN 55416 Attention: Bryan Nelson If to the Remarketing Agent: Miller, Johnson & Kuehn, Inc. 5500 Wayzata Boulevard, Suite 800 - Minneapolis, MN 55416 Attention: Bryan Nelson and If to the Letter of Credit Bank: Firstar Bank Mail Location: MN- SP -I2CB 101 East Fifth Street, 12` Floor St. Paul, MN 55101 -1880 Attention: Paul S. Bauer or to the issuer of a Substitute Credit Facility at its address designated in writing to the Trustee. The Issuer, the Company, the Trustee, the Remarketing Agent, the Tender Agent and the_ Guarantor may designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section S 1.15. Certain References Ineffective After Guaranty Termination Date. _ From and after the Guaranty Termination Date all references to the Guarantor (other than references applciable to a Substitute Credit Issuer, including the Letter of Credit Bank, in their capacity as successor to the Guarantor or the Guaranty in this Indenture and the Bonds shall be ineffective. -6- i Section 51.16. Interpretation, Amendments to Indenture. The foregoing First Supplemental Indenture of Trust is provided to supplement and amend the Original Indenture in order to provide for the Substitute Credit in accordance with the terms of Section of this Indenture, and in order to obtain the evidence from Standard & Poor's Ratings Group (the "Rating Agency ") to the effect that the Rating Agency has reviewed the proposed Substitute Credit and that the substitution of the proposed Substitute Credit will not result in a reduction or withdrawal of the rating then borne by the Bonds. To the extent that any provisions of the Original Indenture are inconsistent with or in conflict with the terms and conditions of this First Supplemental Indenture of Trust, this First Supplemental Indenture of Trust shall supercede and control the application of such provisions from and after its date of execution and delivery. To the extent that provisions of the Original Indenture are not altered or amended hereby, such unaffected provisions of the Original Indenture shall remain in full force and effect. For purposes of clarification, sections in this Supplemental Indenture which bear the same section nunii)er as sections of the Original Indenture are intended to be amended and superceded in their entirety by the provisions of this First Supplemental Indenture of Trust, and numbered sections herein which do not appear in the Original Indenture are intended to be supplemental and in addition to the provisions of the Original Indenture. Section 53.08. Funds for Purchase of Bonds. On the date Bonds are to be purchased pursuant to Section 3.06 hereof, such Bonds shall be purchased at the Purchase Price only from • the funds listed below. Subject to the provisions of Section 54.08 funds for the payment of the Purchase Price shall be derived from the following sources in the order of priority indicated: (a) the proceeds of the sale of such Bonds which have been remarketed by the Remarketing Agent pursuant to Section 53.12 hereof to any entity other than the Company, the Issuer or any "affiliate" of the Company or the Issuer (as defined in the United States Bankruptcy Code) or any guarantor of the Company's obligations under the Loan Agreement; (b) moneys furnished to the Trustee by the Letter of Credit Bank under the Letter of Credit; and (c) any other moneys furnished to the Trustee and available for such purpose. Section 53.09. Delivery of Purchased Bonds. (a) Bonds purchased with moneys described in Section 53.08(a) hereof shall be delivered by the Tender Agent, at its Delivery Office, to or upon the order of the purchasers thereof. (b) Bonds purchased with moneys described in Section 53.08(b) hereof shall be delivered by the Tender Agent to or upon the order of the Letter of Credit Bank pursuant to the Credit Agreement. -7- (c) Bonds purchased with moneys described in Section S3.08(c) shall, at the • direction of the Company, be (A) delivered as instructed by the Company or (B) delivered to the Trustee for cancellation; provided, however, that any Bonds so purchased after the selection thereof by the Trustee for redemption shall be delivered to the Trustee for cancellation. (d) The Trustee shall promptly (but in no event later than 9:00 A.M., St. Paul, Minnesota time, on the date designated for purchase of the related Bonds) deliver to the Tender Agent all non - recourse due - bills, if any, delivered to the Trustee in accordance with Section 3.06 of the Indenture. (e) The Tender Agent shall deliver to the person to whom the Tender Agent is to deliver such Bonds the nonrecourse due - bills, if any, delivered to the Tender Agent with respect to such Bonds in accordance with Section 3.06 hereof. (f) Notwithstanding anything herein to the contrary, so long as the Bonds are held under the Book -Entry System, Bonds will not be delivered as set forth in (a) -(d) above, rather, transfers of beneficial ownership of the Bonds to the persons indicated above will be effected on the books of the Securities Depository pursuant to its rules and procedures. Bonds delivered as provided in this Section shall be registered in the manner directed by , the recipient thereof. Section 53.10. Delivery of Proceeds of Sale of Purchased Bonds. (a) Except in the case of the sale of any Pledged Bonds, the proceeds of the sale of any Bonds delivered or deemed delivered to the Tender Agent pursuant to Section 3.06 hereof, to the extent not required to pay the Purchase Price thereof in accordance with Section S3.08 hereof, shall be paid to or upon the order of the Company. (b) In the event the Remarketing Agent shall have remarketed any Pledged Bonds and the Company shall have directed the Letter of Credit Bank to. deliver such Pledged Bonds to the Tender Agent pursuant to the Credit Agreement, such Bonds shall be delivered by the Tender Agent in accordance with Section S3.09(b) hereof and the proceeds of the sale of such Bonds shall be delivered to the Letter of Credit Bank; provided that any accrued interest in excess of amounts then due to the Letter of Credit Bank pursuant to the Credit Agreement received upon the sale of such Bonds shall be delivered by the Letter of Credit Bank to or upon the order of the Company. -8- Section S3.11. Duties of Trustee, the Remarketing Agent and Tender Agent with Respect to Purchase of Bonds. (a) The Trustee and Remarketing Agent shall deliver to the Tender Agent, the Company and the Letter of Credit Bank a copy of each notice delivered to it in accordance with Section 3.06 hereof. (b) Immediately upon the delivery to it of Bonds in accordance with Section 3.06, the Tender Agent shall give telephonic or telegraphic notice to the Company, the Trustee and the Letter of Credit Bank specifying the principal amount of the Bonds so delivered. (c) The Trustee shall cause, upon the direction of the Tender Agent on the day Bonds are to be purchased, the Letter of Credit Bank to make payments under the Letter of Credit hi accordance with the terms thereof to the extent required by Sections S3.08 and 54.08 hereof to provide for timely payment of the Purchase Price of Bonds. (d) The Trustee shall cause arrangements satisfactory to the Trustee and Tender Agent to be made and thereafter continue whereby funds from the sources described in Section S3.08 hereof will be made available to the Tender Agent for the timely payment of the Purchase Price of the Bonds. Any moneys remitted by the Trustee • to the Tender Agent shall be accompanied by notice describing the source(s) of such moneys. Section S3.12. Additional Provision Regarding Remarketing and Purchase of Tendered Bonds (a) Remarketing of Tendered Bonds. Unless otherwise instructed by the Company, the Remarketing Agent shall offer for sale and use its best efforts to find purchasers for all Bonds which are subject to mandatory purchase pursuant to Section 3.06. The terms of any sale by the Remarketing Agent shall provide for the payment of the Purchase Price for tendered Bonds by the Remarketing Agent to the Tender Agent on the purchase date in immediately available funds at or before 8:30 a.m., St. Paul, Minnesota time. The Remarketing Agent shall not remarket any Bonds pursuant to this Section to the Company or any affiliate of the Company. (b) Purchase of Tendered Bonds. (1) Notice At or before 9:00 a.m., St. Paul, Minnesota time, on the purchase date, the Tender Agent shall give notice to the Trustee, the Letter of Credit Bank, the Company and the Issuer, specifying the amount of remarketing proceeds received and principal amount of tendered Bonds as to which the Remarketing Agent has not found a purchaser at that time or has found a purchaser from whom payment has not been • received. At or before 9:00 a.m., St. Paul, Minnesota time, on the purchase date, the Remarketing Agent shall give notice to the Tender Agent and the Trustee of the names, -9- addresses and taxpayer identification numbers of the purchasers, the denominations of Bonds to be delivered to each purchaser and, if available, payment instructions for regularly scheduled interest payments, or of any changes in any such information previously communicated. (2) Sources of Payments. The Remarketing Agent shall cause to be paid to the Tender Agent on the purchase date of tendered Bonds all amounts representing proceeds of the remarketing of such Bonds (the "Remarketing Proceeds "), such payments to be made in the manner and at the time specified in Section 54.08 hereof. If the Remarketing Proceeds will not be sufficient to pay the Purchase Price on the purchase date of Bonds (other than Pledged Bonds or Company Bonds), the Tender Agent shall give notice to the Trustee prior to 9:00 a.m., St. Paul, Minnesota time, on the purchase date to demand payment under the Letter of Credit, and the Trustee shall at or prior to 9:30 a.m., St. Paul, Minnesota time, on the purchase date, make such demand in the manner set forth in the Letter of Credit, and the Letter of Credit Bank shalt furnish immediately available funds by 12:30 p.m., St. Paul, Minnesota time on such purchase date, in an amount sufficient, together with the Remarketing 'Proceeds, to enable the Tender Agent to pay the Purchase Price of such Bonds to be purchased on such purchase date; provided, the Trustee shall not make any demand for payment under the Letter of Credit with respect to Company Bonds or Pledged Bonds. If the Trustee shall not have received any notice from the Tender Agent, the Trustee shall draw on the Letter of Credit in an amount equal to the Purchase Price of all Bonds to be purchased on such purchase date. The Trustee shall authorize direct payment by the Letter of Credit Bank to the • Tender Agent. If moneys received by the Tender Agent from Remarketing Proceeds and from draws under the Letter of Credit will not be sufficient to pay the Purchase Price on the purchase date of Bonds (other than Pledged Bonds or Company Bonds), the Tender Agent shall give notice to the Issuer and the Company by 1:00 p.m., St. Paul, Minnesota time, on the purchase date, to furnish immediately available funds to the Tender Agent by 1:30 p.m., St. Paul, Minnesota time, on such purchase date, in an amount sufficient together with the Remarketing Proceeds, to enable the Tender Agent to pay the Purchase Price of such Bonds (other than Pledged Bonds or Company Bonds) to be purchased on such purchase date. The Company shall deliver or cause to be delivered such amounts by such time so that there will be delivered to the Tender Agent immediately available funds in an amount equal to any insufficiency in Remarketing Proceeds and draws under the Letter of Credit with respect to the Purchase Price of such Bonds prior to 1:30 p.m., St. Paul, Minnesota time, on the purchase date. All moneys received by the Tender Agent as Remarketing Proceeds, from demands by the Trustee under the Letter of Credit or from the Company, as the case may be, shall be deposited by the Tender Agent in the appropriate account of the Bond Purchase Fund as herein provided and shall be used solely for the payment of the Purchase Price of tendered Bonds and shall not be commingled with other funds held by the Tender Agent. Section 53.13. Pledged Bonds. Bonds purchased with proceeds made available through the Letter of Credit pursuant to this Article shall be acquired for the benefit of the Letter of Credit Bank. The Letter of Credit Bank shall be the Beneficial Owner of such Bonds, which -10- shall constitute "Pledged Bonds," and shall be delivered to and held by the Trustee as agent for the Letter of Credit Bank (and shall be shown as Pledged Bonds on the Bond Register). The Remarketing Agent shall at the request of the Letter of Credit Bank continue to use its best efforts to arrange for the sale of any Pledged Bonds at the Purchase Price, subject to full reinstatement of the amount available to be drawn under the Letter of Credit with respect to such Bonds. If the Remarketing Agent remarkets any Pledged Bond, the Remarketing Agent shall direct the purchaser of such Pledged Bond to transfer, by 9:00 a.m., St. Paul, Minnesota time, on the purchase date, the Purchase Price of such remarketed Pledged Bond to the Tender Agent for deposit into a separate subaccount of the Remarketing Account of the Bond Purchase Fund, to be held for the benefit of the Letter of Credit Bank and disbursed from such subaccount solely for the purposes described in this paragraph. The Tender Agent shall immediately notify the Letter of Credit Bank of the receipt of the Purchase Price for such Pledged Bond, and upon receipt of the Purchase Price and of written evidence satisfactory to the Tender Agent of full reinstatement of she amount available to be drawn under the Letter of Credit (as contemplated by the prreced19 paragraph), the Tender Agent shall advise the Trustee of such reinstatement and such Pledged Bond shall be released from the pledge of the Letter of Credit Bank. The Tender Agent shall transfer such Purchase Price to the Letter of Credit Bank upon receipt thereof and of written evidence satisfactory to the Tender Agent of full reinstatement of the amount available to be drawn under the Letter of Credit (as contemplated by the preceding paragraph) to the extent that amounts remain due and owing to the Letter of Credit Bank under the -Letter of Credit, and give . all required notices, in accordance with the terms of the Letter of Credit. If moneys remain on deposit with the Tender Agent in such subaccount after payment is made to the Letter of Credit Bank as described in the preceding sentence and upon written notice from the Letter of Credit Bank that no amounts are owed to the Letter of Credit Bank pursuant to the Letter of Credit, such moneys shall be paid to, or upon the order of, the Company. Notwithstanding anything to the contrary in this subsection, if and for so long as the Bonds are held in the Book -Entry System, the registration requirements under this subsection shall be . deemed satisfied if Pledged Bonds are (A) registered in the name of the Securities Depository or its nominee, (B) credited on the books of the Securities Depository to the account of the Trustee (or its nominee) and (C) further credited on the books of the Trustee (or such nominee) to the account of the Letter of Credit Bank (or its designee). Section 54.04. Creation of the Bond Fund. There is hereby created and established with the Trustee a trust fund to be designated "BROOKLYN CENTER, MINNESOTA - Bond Fund, Brookdale Corporate Center Two Project," which shall be used to pay when due the principal and premium, if any, and interest on the Bonds, and which shall include separate subaccounts designated the Letter of Credit account, the Eligible Money Account and the Non - Eligible Money Account. There shall be deposited into the Bond Fund from time to time the following: • -11- (a) all payments specified in Section 2.2 of the Agreement (other than amounts paid for the Trustee's or the Issuer's own account); (b) any moneys received pursuant to the Mortgage; (c) any moneys drawn under the Letter of Credit shall be deposited in the separate Letter of Credit Account of the Bond Fund and shall not be commingled with any other moneys held by the Trustee; (d) all other moneys received by the Trustee under - and pursuant to any of the provisions of the Agreement which are required to be or which are accompanied by directions that such moneys are to be paid into the Bond Fund. Any amounts paid to the Trustee that do not constitute Eligible Money shall be held in the Non - Eligible Money Account and shall not be commingled with acv other money held by the Trustee. At such time as money in the Non - Eligible Money Account shall constitute Eligible Money, as evidenced by an opinion delivered to the Trustee satisfying the requirements set forth in clause (1) of the definition of "Eligible Money" herein, they shall be transferred to the Eligible Money Account upon written direction of the Company. Any amounts received for deposit in the Bond Fund that constitute Eligible Money (other than amounts drawn under the Letter of Credit), and any amounts deposited in the Non - Eligible Money Account which at a later date become Eligible Money, shall be held in the Eligible Money Account and shall not be commingled with any other money held by the Trustee. Any amounts drawn under the Letter of Credit for the payment of principal of, premium, if any, or interest on the Bonds shall be held in the Letter of Credit Account and shall not be commingled with any other money held by the Trustee. The money in the Bond Fund shall be held in trust and shall be applied solely in accordance with the provisions of this Indenture to pay the principal of and redemption premium, if any, and interest on the Bonds as the same become due and payable at maturity, upon redemption, by acceleration or otherwise, or, to the extent such funds are not necessary to pay principal of, premium, if any, or interest on Bonds then due, to reimburse the Letter of Credit Bank for drawings made or other amounts owing under the Credit Agreement. So long as the Letter of Credit is in effect, the Trustee, prior to 9:00 a.m., St. Paul, Minnesota time, on the Business Day next preceding each interest payment date and each date on which principal is due and payable on the Bonds (whether at maturity or upon proceedings for redemption, or by acceleration), shall draw on the Letter of Credit an amount which shall be sufficient for the purpose of paying the principal of, and premium, if any (if the Letter of Credit then covers premium) and interest due and payable on the Bonds (other than Pledged Bonds and Bonds owned by the Company) on such payment date. The Trustee shall deposit all money received pursuant to each draw on the Letter of Credit therefor in the Letter of Credit Account in the Bond Fund and shall apply such money to the payment of the principal of and interest on or redemption price of Bonds as provided in this Section. Money in the Eligible Money Account and the Non - Eligible Money Account in the Bond Fund, in that order, and not necessary for the -12- payment of principal of, premium, if any, or interest on the Bonds then due, shall be used . immediately to reimburse the Letter of Credit Bank under the Credit Agreement for draws on the Letter of Credit that were used for such purpose and to pay obligations owing to the Letter of Credit Bank under the Credit Agreement then due and payable. The Trustee is to receive from the Company pursuant to Section 2.2 of the Agreement the full amount of principal of, and premium, if any, and interest due on, the Bonds on each interest payment date, principal payment date, redemption date, or acceleration date, as the case may be, if either (i) no Letter of Credit is then in effect, or (ii) if by 11:30 a.m., St. Paul, Minnesota time, on such date insufficient funds to pay such principal, premium, if any, and interest are not available therefor in the Letter of Credit Account and the Eligible Money Account. When a Letter of Credit is in effect, if there is not sufficient Eligible Money in the Letter of Credit Account and the Eligible Money Account by 11:30 a.m., St. Paul, Minnesota time, on any interest payment date, principal payment date, redemption date, or acceleration date, as the case may be, to pay all principal of, premium, if any, and interest on the Bonds due on such date, the 1 a astee shall promptly give Electronic Notice to the Company of the amount of any s�ich deficiency. The Trustee is authorized and directed to withdraw sufficient funds from the Letter of Credit Account in the Bond Fund to pay principal of, redemption premium, if any (but only if and to the extent that the Letter of Credit has been drawn upon to pay such redemption premium), and interest on the Bonds as the same become due and payable at maturity or upon redemption and to make said funds so withdrawn available to any Paying Agent for the purpose of paying said principal, redemption premium, if any, and interest. On the same Business Day on which money is disbursed from the Bond Fund pursuant to the preceding sentence, if money then remains in the Bond Fund, such money shall be disbursed to the Letter of Credit Bank to the extent amounts are then owed to the Letter of Credit Bank pursuant to the Credit Agreement. The Trustee may rely on a certificate from the Letter of Credit Bank that certifies the amounts so owed at any time. In the event of a default under the Letter of Credit, or at such time as no Letter of Credit secures the Bonds, the Trustee shall use all money then on deposit in the Bond Fund, first from the Eligible Money Account and thereafter the Non - Eligible Money Account, to pay principal of, and premium, if any, and interest on, the Bonds. The Trustee, upon the written instructions from the Issuer given pursuant to written direction of the Company, shall use excess Eligible Money in the Bond Fund to redeem all or part of the Bonds Outstanding and to pay interest to accrue thereon prior to such redemption and redemption premium, if any, on the next succeeding redemption date for which the required redemption notice may be given or on such later redemption date as may be specified by the Company, in accordance with the provisions of Section 3.03 Article XII hereof, so long as the Company is not in default with respect to any payments under the Agreement and to the extent said moneys are in excess of the amount required for payment of Bonds theretofore matured or called for redemption; provided, further, however, if a Letter of Credit is then outstanding, that no amounts are then owed to the Letter of Credit Bank under the Credit Agreement, as certified by the Letter of Credit Bank. The Company may cause such excess money in the Bond Fund or such part thereof or other money of the Company, as the Company may direct, to be applied by -13- the Trustee on a best efforts basis for the purchase of Bonds in the open market for the purpose of cancellation at prices not exceeding the principal amount thereof plus accrued interest thereon to the date of such purchase. After payment in full of the principal of, redemption premium, if any, and interest on the Bonds (or after provision has been made for the payment thereof as provided in this Indenture), all rebatable arbitrage to the United States, the fees, charges and expenses of the Trustee, any Paying Agents, the Remarketing Agent, the Tender Agent, the Issuer and any governmental unit, any other amounts required to be paid under this Indenture and the Agreement, and all amounts owed to the Letter of Credit Bank under the Credit Agreement, all amounts remaining in the Bond Fund shall be paid to the Company upon the expiration or sooner termination of the Agreement. Section S4.04A. Use of Moneys in the Bond Fund. Except as provided in Section 53.08 hereof, moneys in the Bond Fund shall be used solely for the payment of the principal of, premium, if any, and interest on the Bonds and for the redemption of the Bonds prior to maturity. Subject to the provisions of Section 54.12 hereof, funds for such payments of the principal of and premium, if any, and interest on the Bonds shall be derived from the following sources in the order of priority indicated: (a) moneys furnished to the Trustee from draws under the Letter of Credit (other than Purchase Payments); and amounts deposited into the Bon Fund pursuant a t to Section 4.04 (b) p d p o S ()hereof which are derived pursuant to Section 2.2 of the Agreement; (c) any other moneys furnished to the Trustee and available for such purpose. Section S4.08. Bond Purchase Fund. There is hereby created with the Tender Agent a segregated trust fund to be designated the "Bond Purchase Fund." The Bond Purchase Fund shall consist of sub - accounts for the Bonds to be designated respectively the "Remarketing Account," and the "Letter of Credit Purchase Account." The Tender Agent shall deposit or cause to be deposited into the Remarketing Account, when and as received, all money delivered to the Tender Agent as and for the Purchase Price of remarketed Bonds by or on behalf of the Remarketing Agent. The Tender Agent shall disburse money from the Remarketing Account to a the Purchase Price of Bonds properly tendered for PY P p purchase upon surrender of such Bonds (or to reimburse the Letter of Credit Bank for amounts paid under the Letter of Credit with respect to such Bonds). i The Trustee or Tender Agent, as the case may be, shall deposit or cause to be deposited into the Letter of Credit Purchase Account when and as received, all proceeds made available pursuant to Section S3.08(b) to pay the Purchase Price from draws under the Letter of Credit. The Tender Agent shall disburse moneys from the Letter of Credit Purchase Account to pay the . -14- Purchase Price of Bonds properly tendered for purchase upon surrender of such Bonds; provided that such proceeds shall not be applied to purchase Pledged Bonds or Company Bonds. The funds held by the Tender Agent in the Bond Purchase Fund shall not be subject to any lien of this Indenture. The moneys in the Bond Purchase Fund shall be used solely to pay the Purchase Price of Bonds as aforesaid (or to reimburse the Letter of Credit Bank for amounts aid under the p Letter of Credit for such ose and may not be used for an other PmP ) Y Y purposes, and to that end the Letter of Credit Bank shall have an express lien on such funds subject to the rights of Owners of the Bonds. It shall be the duty of the Tender Agent to hold the money in the Bond Purchase Fund, without liability for interest thereon, for the benefit of the Owners of Bonds which have been properly tendered for purchase or deemed tendered on the purchase date; and if sufficient funds to pay the Purchase Price for such tendered Bonds shall be held by the Tender Agent in the Bond Purchase Fund for the benefit of the Owners thereof each such Owner shall thereafter be restricted exclusively to the Bond Purchase Fund for any claim of whatever nature on such Owner's part under this Indenture or on, or with respect to, such tendered Bond. Funds --held in the Bond Purchase Fund for the benefit of Owners of tendered Bonds shall be hid in trust and either not invested or invested in overnight obligations of the type described in clause (a) of the definition of "Government Obligations" in Article I hereof. Money in the Bond Purchase Fund which remains unclaimed two years after the applicable purchase date shall, at the request of the Company, and if the Company is not, at the time, to the knowledge of the Tender Agent, in default with respect to any covenant in the Agreement or the Bonds, be paid to the Company, and the Owners of the Untendered Bonds for which the deposit pos t was made shall thereafter be limited to a claim against the Company. Section S4.12. Letter of Credit. (A) The Letter of Credit Bank will issue and deliver to the Trustee the Letter of Credit, which will provide funds for the payment of the principal of, and interest on the Bonds at the scheduled maturity date, redemption date or acceleration date thereof, and for the payment of the Purchase Price of Bonds that have been tendered for purchase and for which proceeds of remarketing have not been received. The Trustee shall hold the Letter of Credit for the benefit of the Owners of the Bonds until the Letter of Credit terminates in accordance with its terms. If at any time during the term of the Letter of Credit the Trustee resigns or is removed, and a successor Trustee is appointed and qualified under this Indenture, the resigning Trustee shall request that the Letter of Credit Bank transfer the Letter of Credit to the successor Trustee, and shall take all actions necessary to effect the transfer of the Letter of Credit to the successor Trustee. When the Letter of Credit terminates in accordance with its terms, the Trustee shall immediately surrender the Letter of Credit to the Letter of Credit Bank. The Trustee shall draw amounts under the Letter of Credit in accordance with the terms and conditions set forth therein at the times, in the manner and for the purposes set forth in this Indenture. The Issuer agrees that the Trustee in its name may enforce all rights of the Trustee and of the Issuer and all obligations of the Letter of Credit Bank (including the obligations of the • Letter of Credit Bank to honor drafts duly presented in accordance with the terms and conditions of the Letter of Credit) under and pursuant to the Letter of Credit for the benefit of the Owners of -15- the Bonds. All amounts drawn under the Letter of Credit shall be held by the Trustee or the Tender Agent in the Letter of Credit Account in the Bond Fund or the Letter of Credit Purchase Account in the Bond Purchase Fund and used only for the purposes set forth herein. In the event that principal of and interest on Bonds are paid from Eligible Money (other than proceeds from a draw under the Letter of Credit) and the Indenture is not discharged under Section 5.01 hereof, the Trustee agrees, upon receipt of a request from a Company Representative, to deliver to the Letter of Credit Bank an instruction to reduce the stated amount of the Letter of Credit by an amount equal to the principal amount of Bonds paid from Eligible Money and interest thereon but not to a stated amount less than that then required by the Rating Agency. The Trustee also agrees to take all steps necessary to reduce the stated amount of the Letter .of Credit in accordance with its terms. (B) The Company may at any time, subject to any applicable provisions of the Letter of Credit, arrange for the substitution of a Substitute Credit Facility for an existing Letter of Credit, and the Trustee shall accept any Substitute Credit Facility, subject to the following limitations: (i) Each Substitute Credit Facility shall be an agreement or instrument issued and delivered in substitution for an existing Letter of Credit, under which any Person (other than the Company) undertakes to make or provide funds to make payments of the principal of and interest on the Bonds, as and when due, and payments of the Purchase Price of Bonds that have been tendered for purchase and for which proceeds of a remarketing have not been received, and which meets the requirements and conditions of this Section; (ii) Each Substitute Credit Facility, or a binding commitment to issue and deliver the Substitute Credit Facility, must be delivered to the Trustee not less than 30 days prior to the date of expiration of the then existing Letter of Credit, must be effective as of a date on or prior to the date of expiration of the then existing Letter of Credit, shall expire no earlier than the Letter of Credit which it replaces, but may be expressed to expire prior to the final maturity of the Bonds; (iii) The Company shall give written notice to the Trustee, the Tender Agent and each Rating Service maintaining a rating on the Bonds, if any, not less than 60 days prior to the expiration or termination date of the Letter of Credit then in effect, specifying that the Company intends to replace the existing Letter of Credit with a Substitute Credit Facility on or before the expiration of the Letter of Credit then in effect. Upon receipt of such notice, the Trustee shall promptly mail a notice of the anticipated delivery of the Substitute Credit Facility by first -class mail to the Remarketing Agent and each Owner of a Bond. A draft of each Substitute Credit Facility and the related credit agreement and appropriate information concerning the issuer of such Substitute Credit Facility shall be submitted to each Rating Service, if any, maintaining a rating on the Bonds; -16- (iv) The Company shall cause to be delivered to the Trustee not less than 30 days prior to the expiration or termination date of the existing Letter of Credit (1) a commitment by the issuer which will issue the Substitute Credit Facility, (2) written notice from each Rating Service, if any, maintaining a rating on the Bonds stating whether the substitution of such Substitute Credit Facility will result in a reduction or withdrawal of any rating then in effect on the Bonds, and (3) if no Rating Service is then maintaining a rating on the Bonds, written documentation evidencing that the short term debt rating of the issuer of the Substitute Credit Facility is not less than the then current short term debt rating of the Letter of Credit Bank which issued the existing Letter of Credit. The Bonds shall be subject to mandatory purchase under Section 3.06 hereof if such written notice from each Rating Service, if any, then having a rating in effect for the Bonds states that the replacement of the current Letter of Credit with the proposed Substitute Credit Facility will result in a withdrawal or reduction of the Rating Service's then current rating for the Bonds or if the short term debt rating of the issuer of the _ Substitute Credit Facility is lower than such rating with respect to the Letter of Credit Bank which issued the existing Letter of Credit; and (v) On or prior to the effective date of any Substitute Credit Facility, the Company shall furnish to the Trustee (1) an opinion of Independent counsel stating that delivery of such Substitute Credit Facility to the Trustee is authorized under this Indenture, and complies with the terms hereof, (2) an opinion of Independent counsel from counsel to the issuer of such Substitute Credit Facility to the effect that the Substitute Credit Facility is a valid and binding obligation of such issuer or provider, enforceable in accordance with its terms, subject to customary exceptions relating to bankruptcy and insolvency, (3) an opinion of Bond Counsel stating that the delivery of such Substitute Credit Facility to the Trustee is authorized under this Indenture and complies with the terms hereof and does not adversely affect the tax- exempt status of the interest on the Bonds, (4) written evidence from each Rating Service, if any, at the time providing a rating on the Bonds, to the effect that such Rating Service has reviewed the proposed Substitute Credit Facility and that the substitution of the proposed Substitute Credit Facility for the Letter of Credit will not, by itself, result in a reduction or withdrawal of its rating of the Bonds from that which prevailed prior to the substitution of the Substitute Letter of Credit, and (5) if no Rating Service is then maintaining a rating on the Bonds written documentation evidencing that the short term debt rating of the issuer of the Substitute Credit Facility is not less than the short term debt rating of the Credit Bank which issued the existing Letter of Credit. The Company shall not rescind or terminate the Letter of Credit unless such a Substitute Credit Facility is in effect. (vi) If the Trustee receives written evidence from any Rating Service maintaining a rating on the Bonds that such rating has been increased, reduced or withdrawn, the Trustee shall promptly give written notice of such rating change to the Owners of the Bonds. • Section S4.1OA. Investment of Funds in Bond Fund. Notwithstanding the foregoing provisions of Section 4.10 hereof, any moneys held as a part of the Bond Fund (except the Letter -17- of Credit Account) shall be invested or reinvested by the Trustee without instruction, direction or control by the Company, any partner of the Company or the Issuer, to the extent permitted by law, in interest bearing deposit accounts fully secured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Company or in United States Treasury bills with maturities of no more than thirty (30) days from the date of acquisition thereof. Any moneys held in the Letter of Credit Account of the Bond Fund shall not be invested or reinvested by the Trustee. Section 56.01. Defaults. If any of the following events occur, it is hereby declared to constitute a "Default ": (a) Default in the due and punctual payment of interest on any Bond when the same becomes due and payable; (b) Default in the due and punctual payment of the principal of or premium, if any, on any Bond, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; (c) Default in the due and punctual payment of the Purchase Price of any Bond at the time required by Section 3.06 hereof; (d) Receipt by the Trustee of written notice from the Letter of Credit Bank that an "Event of Default" has occurred under the Credit Agreement and is continuing and directing the Trustee to accelerate the Bonds; (e) The occurrence of a Default under the Agreement; or (f) Default in the performance or observance of any other of the covenants, agreements or conditions on the part of the Issuer in this Indenture or in the Bonds contained and failure to remedy the same after notice thereof pursuant to this Article VII. Section 56.02. Acceleration. Upon the occurrence of (i) any Default under subsection (a), (b), (c), (e) or (f) of Section 56.01, the Trustee may, and at the written request of the owners of not less than twenty -five percent (25 %) in aggregate principal amount of Bonds Outstanding shall, or (ii) at the written direction of the Letter of Credit Bank delivered pursuant to subsection (d) of Section 56.01, the Trustee shall, by notice in writing delivered to the Issuer, the Company and the Letter of Credit Bank declare the principal of all Bonds and the interest accrued thereon to the date of such acceleration immediately due and payable. The provisions of the preceding paragraph are subject to the condition that if, after the principal of the Bonds shall have been so declared to be due and payable, and (x) during any period that the Letter of Credit is in effect, before any notice of acceleration of the payment of the Bonds shall have been given to the Owners of Bonds Outstanding, and (y) before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall cause to be deposited with the Trustee a sum of Eligible -18- Moneys sufficient to pay all matured installments of interest upon all Bonds and the principal of any and all Bonds which shall have become due otherwise than by reason of such declaration (with interest upon such principal and, to the extent permissible by law, on overdue installments of interest, at the rate per annum specified in the Bonds) and such amount as shall be sufficient to cover reasonable compensation and reimbursement of expenses payable to the Trustee, and all Defaults hereunder other than nonpayment of the principal of Bonds which shall have become due by said declaration shall have been remedied, then, in every such case, such Default shall be deemed waived and such declaration and its consequences rescinded and annulled, and the Trustee shall promptly give written notice of such waiver, rescission or annulment to the Issuer, the Company, the Letter of Credit Bank, the Paying Agent and the Remarketing Agent, and shall give notice thereof by mail to all Owners of Outstanding Bonds appearing on the list kept on file by the Bond Registrar; but no such waiver, rescission and annulment shall extend to or affect any subsequent Default or impair any right or remedy consequent thereon. The provisions of the second preceding paragraph are subject to the condition that any waiver by the Letter of Credit Bank of any event of default under the Credit agreement and, in the case of Section 56.01(d) hereof, that an event of default under the Credit Agreement has been waived, a rescission and annulment of its consequences, but only if such waiver, rescission and annulment shall have been made prior to the time that notice of acceleration of the Bonds shall have been given to Owners of Bonds Outstanding, shall constitute a waiver of the corresponding Default (as set forth in clause (d) of Section 56.01) under this Indenture and a rescission and annulment of the consequences thereof. If notice of such default under the Credit Agreement • shall have been given as provided herein and if thereafter, but prior to the giving of notice of acceleration of the Owners, the Trustee shall have received written notice from the Letter of Credit Bank that such event of default shall have been waived, the Trustee shall promptly give written notice of such waiver, rescission or annulment to the Issuer, the Company, the Letter of Credit Bank, the Paying Agent and the Remarketing Agent, but no such waiver, rescission or annulment shall extend to or affect any subsequent Default or impair any right or remedy consequent thereon. Upon the occurrence of a Default specified in Section 56.01 above and an acceleration hereunder during any period when the Letter of Credit is in effect, the Trustee shall (i) make immediate demand upon the Letter of Credit Bank under the provisions of the Letter of Credit for all amounts sufficient to pay all principal of, if any, and accrued and unpaid interest through the accelerated date for payment on the Bonds Outstanding and (ii) shall state in the notice of said acceleration given to Owners the effective date of acceleration and payment on the Bonds and that such demand has been made upon the Letter of Credit Bank for the amounts referred to above. Interest shall continue to accrue on the Bonds until the payment date determined by the Trustee, which payment date must be within the period for which principal of and interest on the Bonds is covered by amounts available to be drawn under the Letter of Credit. With regard to any Default described in clause (e) of Section 56.01 concerning which notice is given to the Issuer, the Letter of Credit Bank and the Company under the provisions of • this Section, the Issuer hereby grants the Company and the Letter of Credit Bank full authority for the account of the Issuer to perform any covenant or obligation alleged in said notice to -19- constitute a Default, in the name and stead of the Issuer with full power to do any and all things and acts to the same extent that the Issuer could do and to perform any such things and acts and with power of substitution. Any agent appointed for such purpose by the Company or the Letter of Credit Bank may exercise rights of the Company and the Letter of Credit Bank hereunder, and the effect of the exercise of any such right by any such agent shall be the same as if such right had been exercised by the Company or the Letter of Credit Bank. Section S9.01. [Amendments to Loan Agreement and Letter of Credit Not Requiring Consent of Owners of Bonds. The Issuer and the Trustee may, with the consent of the Letter of Credit Bank, and without the consent of or notice to the Owners of Bonds, consent to any amendment, change or modification of the Loan Agreement and Letter of Credit as may be required (i) by the provisions of the Loan Agreement and Letter of Credit, (ii) for the purpose of curing any ambiguity or formal defect or omission in the Loan Agreement and Letter of Credit, or (iii) in connection with any other change therein which, in the judgment of the Trustee, is not to the prejudice of the Trustee or the Owners of Bonds.] Section 59.02. [Amendments to Agreement and Letter of Credit Requiring Consent of Owners of Bonds. Except for the amendments, changes or modifications as provided in Section S9.01 hereof, neither the Issuer nor the Trustee shall consent to any other amendment, change or modification of the Loan Agreement or Letter of Credit without mailing of notice and the written approval or consent of the Letter of Credit Bank and the Owners of at least two- thirds (2/3) in aggregate principal amount of the Outstanding Bonds, provided that the consent of the Letter of Credit Bank and the Owners of all Bonds Outstanding is required for any amendment, change or modification of the Loan Agreement or Letter of Credit that would permit the termination or cancellation of the Loan Agreement or Letter of Credit or a reduction in or postponement of the payments under the Loan Agreement or Letter of Credit or any change in the provisions relating to payment thereunder. If at any time the Issuer and the Company shall request the consent of the Trustee to any such proposed amendment, change or modification of the Loan Agreement or Letter of Credit, the Trustee shall, upon being satisfactorily indemnified with respect to expenses, cause notice of such proposed amendment, change or modification to be given in the same manner as provided by Section [8.03] hereof with respect to supplemental indentures. Such notice shall briefly set forth the nature of such proposed amendment, change or modification and shall state that copies of the instrument embodying the same are on file at the Principal Office of the Trustee for inspection by all Owners of Bonds.] Section S 10.06. Supplemental Indentures Requiring Consent of Letter of Credit Bank. Notwithstanding any other provision of this Indenture to the contrary, no supplemental indenture shall be entered into without the prior consent of the Letter of Credit Bank so long as a -20- Letter of Credit securing the Bonds is in effect, and the Letter of Credit Bank is not in default in • payment of any amounts due under the Letter of Credit. Section S 12.04. Deposit of Redemption Price; Bonds Payable on Redemption Date. On or before any redemption date, the Issuer shall deposit with the Trustee or with a Paying Agent, from moneys provided by the Company, an amount of money sufficient to pay the redemption price of all the Bonds which are to be redeemed on that date. Such money shall be held in trust for the benefit of the Persons entitled to such redemption price and shall not be deemed to be part of the Trust Estate. The principal of, premium, if any, and interest on all Bonds subject to redemption shall be paid first from money drawn under the Letter of Credit, and second from other Eligible Money available to the Trustee. Money drawn under the Letter of Credit shall not be used to pay the redemption premium on any Bond, unless the Letter of Credit expressly provides for the payment of such redemption premium. In no event shall Bonds be redeemed using money other than Eligible Money. So long as a Letter of Credit is in effect, in the case of an optional redemption of Bonds pursuant to Section 3.03(a) hereof, the Trustee shall not give notice of redemption to Owners pursuant to Section 12.03 hereof unless, on or prior to the 35 day next preceding the redemption date, (1) (a) the Letter of Credit Bank has given to the Trustee its written consent to such redemption, or (b) the Company shall have deposited with the Trustee an amount of Eligible . Money equal to the principal for the Bonds subject to redemption and interest to accrue thereon to the redemption date, plus (2) the Company shall have deposited with the Trustee Eligible Money equal to the redemption premium, if any, on the Bonds to be redeemed. The deposits described in the immediately preceding sentences shall be credited to the Eligible Money Account. If the Letter of Credit expressly provides for the payment of redemption premium, then the deposit described in the preceding clause (2) either need not be Eligible Money or may be waived with the written consent of the Letter of Credit Bank. Notice of redemption having been given as aforesaid, the Bonds so to be redeemed shall, on the redemption date, become due and payable at the redemption price therein specified and from and after such date (unless the Issuer shall default in the payment of the redemption price) such Bonds shall cease to bear interest. Upon surrender of any such Bond for redemption in accordance with said notice, such Bond shall be paid by the Issuer at the redemption price. Installments of interest with a due date on or prior to the redemption date shall be payable to the Owners of the Bonds registered as such on the relevant Regular Record Dates according to the terms of such Bonds and the provisions of Section 54.04. If any Bond called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the redemption date at the rate prescribed therefor in the Bond. • 14827/201042/#129106 -21- i IN WITNESS WHEREOF, the Issuer has caused these presents to be executed in its • name by its duly authorized official; and to evidence its acceptance of the trusts hereby created, the Trustee has caused these presents to be executed in its corporate name and with its corporate seal hereunto affixed and attested by its duly authorized officer, as of the date first above written. CITY OF BROOKLYN CENTER, MINNESOTA By: Its By: Its U.S. BANK TRUST NATIONAL ASSOCIATION By: Its Authorized Officer B -1 i Accepted and Agreed to: BCC ASSOCIATES L LC, a Minnesota limited liability company By: Its: • II I • B -2 City. Council Agenda Item No. 9f City of Brooklyn Center A great place to start. A great place to stay. To: Mayor Kragness and CRuncil Members Hilstrom, Lasman, Nelson and Peppe From: Michael I McCauley \ City Manager Date: November 9, 2000 Re: Public Works Union Contract The 3 year labor agreement with Local 49 provides for a wage and insurance re- opener in the event dependent health insurance costs increase in 2001 by more than $40.00 per month above its cost in 2000. Dependent insurance premiums w e increasing between $62.39 and $66.06, depending on the plan chosen. As we discussed at a budget work session, this year employees making around $30,000 and less per year, actually saw a decrease in their net compensation due to increases in dependent insurance premiums ranging from $81.6 to $92.05 per month in 2000. In reviewing other cities' rates of contribution, we have been in the average range, but are falling behind. To address this issue, the proposed amendment to the labor contract would increase the City's contribution from the originally bargained $415 per month in 2001 (an increase of $20.00 above the $395 per month 2000 contribution) to $450 per month in 2001 and $470 per month in 2002. This will cost the City approximately $56,000 in additional General Fund costs above the budgeted $415 per month level of contribution. The other funds will also have increased fringe benefit costs, but the majority of employees are in the General Fund. This will put additional pressure on balancing the 2001 budget, but I feel that it I necessary to address an equitable sharing of these increased costs with the employees. 6301 Shingle Creek Pkwy, Brooklyn Center, MN 55430 -2199 • City Hall & TDD Number (612) 569 -3300 Recreation and Community Center Phone & TDD Number (612) 569 -3400 • FAX (612) 569 -3494 An Affirmative Action /Equal Opportunities Employer Member introduced the following resolution and moved its adoption: • RESOLUTION NO. RESOLUTION APPROVING CONTRACT AMENDMENT WITH LOCAL 49 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS WHEREAS, the City and the International Union of Operating Engineers representing Public Works employees entered into a three year contract covering the period of January 1, 2000 through December 31, 2002; and WHEREAS, that contract provided that wages and insurance benefits would be reopened for negotiation in the event the total premiums for dependent health care coverage increased by more than $40 for coverage in the year 2001 above the total premium for the year 2000; and WHEREAS, negotiations have taken place between Local 49 and the City; and WHEREAS, an equitable resolution of the wage and insurance reopener has been negotiated. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center that the City Manager be and hereby is authorized to execute an amendment to the labor agreement between the City of Brooklyn Center and the International Union of Operating Engineers Local 49 to amend Article 25.2 to provide that the City would contribute $450 per month in 2001 per employee for use in the employer's cafeteria benefit plan and to amend Article 25.3 to provide that the City would contribute a payment of $470 in 2002 per month per employee for use in the employer's cafeteria benefit plan and to amend Article 32 to provide that if the average of total premiums for all dependent health care coverage plans available to employees and employer's cafeteria plan shall increase by more than $40 in 2002 over the 2001 premium for such coverage, the wage and insurance provisions of the collective bargaining agreement shall be reopened for negotiation. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member . and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. City Council Agenda Item No. 9g This item is explained in agenda item 9e of the City Council Agenda under Consideration Items. Materials will be distributed on Monday. i